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622 S.W.2d 578

Williams v. State

Court of Criminal Appeals of Texas

Decided September 23, 1981

Court of Criminal Appeals of Texas · decided 1981-09-23

Key passage — most relied on by later courts

“"Now if you find from the evidence beyond a reasonable doubt that on or about the 6th day of March, 1979, in El Paso County, Texas, the defendant, EDUARDO GARCIA ANTUNEZ, did then and there unlawfully while in the course of committing theft and with intent to obtain property of ROBERT URRUTIA, to-wit: American Currency, without the effective consent of the said ROBERT URRUTIA, with intent to deprive the said ROBERT URRUTIA of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten and place ROBERT URRUTIA in fear of imminent bodily injury and death, then you will find the defendant GUILTY of aggravated robbery as charged in the indictment (Verdict Form `B'). If you find from the evidence beyond a reasonable doubt that the defendant, EDUARDO GARCIA ANTUNEZ, committed the offense of robbery as herein defined, but you have a reasonable doubt as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery (Verdict Form `B-1')."”

quoted by 2 later decisions, including Antunez v. State, Riley v. State

“If you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 1981, in the County of Wichita and the State of Texas, the Defendant, George Raymond Oliver, did intentionally and knowingly cause the death of an individual, Johnny Lloyd Hicks, by shooting the said Johnny Lloyd Hicks with a firearm; or if you find that the defendant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual, Johnny Lloyd Hicks, then you will find the Defendant guilty of murder as charged in the indictment. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of murder and proceed to consider the lesser included offense of involuntary manslaughter.”

quoted by 2 later decisions, including Oliver v. State, Shannon v. State

Relies on Lakeside v. Oregon · Harris v. State · Watson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-09-23

How this case has been cited

Cited by 29 later decisions — most recently March 2006 · most notably Alexander v. McCotter (1985), Walker v. State (1991)

2 federal appellate · 26 state decisions

180198119902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

TEAGUE, Judge.

¶2 Appellant, charged by indictment with committing attempted murder, appeals his conviction for aggravated assault, a lesser included offense, with punishment assessed by a jury at two years’ confinement in the Texas Department of Corrections.

¶3 Appellant does not challenge the sufficiency of the evidence.

¶4 At the outset, we note fundamental error that must be considered in the interest of justice, see Art. 40.09, Sec. 13, V.A.C. C.P., hereinafter cited as C.C.P.

¶5 The entire instruction to the jury, governing the offense of aggravated assault, is as follows:

Aggravated assault is a lesser included offense of that charged.
A person commits the offense of assault if he intentionally or knowingly causes bodily injury to another. The offense becomes aggravated assault if the person committing the assault uses a deadly weapon.
*579 The term “deadly weapon” means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Therefore, if you should find from the evidence that the defendant is not guilty [sic] of either the offense of attempted murder or attempted voluntary manslaughter, but believe [sic] from the evidence beyond a reasonable doubt that the defendant did commit the offense of aggravated assault, then you will find the defendant guilty of the offense of aggravated assault.
If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
If you should find from the evidence that the defendant is not guilty of the offense of aggravated assault, or of any offense defined in this charge, or if you have a reasonable doubt thereof, you should acquit the defendant and say by your verdict not guilty.

¶6 The indictment in this cause alleges in pertinent part that appellant “on or about February 22,1976, did then and there unlawfully attempt to cause the death of Billy Floyd by shooting him with a shotgun, having intent to commit murder.” This alleges the offense of attempted murder under V.T.C.A. Penal Code, Secs. 19.02(a)(1) and 15.01. See Telfair v. State, 565 S.W.2d 522 (1978); Dovalina v. State, 564 S.W.2d 378 (1978). Aggravated assault may be a lesser included offense of attempted murder, see Watson v. State, 605 S.W.2d 877 (1980); Garrett v. State, 573 S.W.2d 543 (1978); and Cato v. State, 534 S.W.2d 135 (1976). The trial court so found from the evidence adduced in the trial of this cause when it gave the instruction on the lesser included offense of aggravated assault.

¶7 In Williams v. State, 547 S.W.2d 18, 20 (1977), a majority of this Court, speaking through Judge Odom, said:

The law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence. It is not sufficient for the jury to receive an abstract instruction on the law and then to render a verdict according to a general conclusion on whether the law has been violated .... An abstract charge does not inform the jury of what facts, if found by it, would constitute proof of the elements of the offense.

¶8 Thus, the court’s charge rather than state mere abstract propositions of law and general principles contained in the statutes, must clearly apply the law to the very facts in the case. See Harris v. State, 522 S.W.2d 199, 202 (1975). In Harris, “The charge [failed] to apply the law of rape to the evidence, and the jury was not instructed under what circumstances they should convict, or under what circumstances they should acquit.” In Williams, supra, the charge only instructed the jury concerning the law and certain facts. However, at no time in the charge was the jury specifically instructed under what circumstances they should convict, or under what circumstances they should acquit the defendant.

¶9 In the case at bar, the charge contained certain abstract principles governing the law of aggravated assault, but at no time was there an application of those principles of law to the specific facts of the case. The charge left the jury to conjecture over what specific facts would be applicable to these principles governing the law of aggravated assault.

¶10 In the trial court’s submission of the lesser included offense of aggravated assault, in the paragraph under which appellant was convicted, the court merely charged the jury as follows:

Therefore, if you should find from the evidence that the defendant is not guilty of either the offense of attempted murder or attempted voluntary manslaughter, but believe [sic] from the evidence beyond a reasonable doubt that the defendant did commit the offense of aggra *580 vated assault, then you will find the defendant guilty of the offense of aggravated assault.

¶11 This charge fails to instruct the jury as to which of appellant’s actions, if believed true beyond a reasonable doubt, would constitute aggravated assault. See also V.T.C.A. Penal Code, Sec. 22.02. The charge, as given, “fails to state and apply the law under which the accused is prosecuted.” Harris v. State, 522 S.W.2d 199, 202 (1975). (emphasis added). Although the charge does instruct the jury “if ... the defendant did commit ... aggravated assault, then [they] will find the defendant guilty of the offense of aggravated assault,” Cf. Ex parte Clark, supra; Idrogo v. State, 589 S.W.2d 433 (1979); Perez v. State, 537 S.W.2d 455 (1976); and Harris v. State, supra, it does not instruct the jury under what set of circumstances or facts of the case they should acquit or convict the appellant of the offense of aggravated assault. This error goes to the very basis of the case and requires reversal.

¶12 The importance of giving proper and complete instructions to a jury by a trial court should never be questioned, especially when one considers the very obvious purpose the charge serves:

The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood ... Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978).

¶13 For the above and foregoing reasons, the judgment is reversed and the cause is remanded.

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