Burkholder v. State

Court of Criminal Appeals of Texas

Burkholder v. State

660 S.W.2d 540, 1983 Tex. Crim. App. LEXIS 1234

CourtCourt of Criminal Appeals of Texas

DecidedNovember 9, 1983

Docket63901

StatusPublished

Cited by11 cases

This text of 660 S.W.2d 540 (Burkholder v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burkholder v. State, 660 S.W.2d 540, 1983 Tex. Crim. App. LEXIS 1234 (Tex. 1983).

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[541]*541OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for assault. After finding appellant guilty, the court assessed punishment at one year, probated.

On March 31, 1978, appellant accompanied Dawn Moody Epps to her former residence. As appellant stood waiting outside the house, Charles Lee Epps, Dawn’s estranged husband, drove into the driveway and got out of his car. Words were exchanged and appellant drew a pistol. Dawn then came out of the house and as she and appellant walked to his car, appellant fired a shot. Appellant testified he did not aim the gun at Charles but instead fired it in the air; Charles, however, testified “the bullet hissed right by my ear."

The indictment charged appellant with the offense of aggravated assault, a third degree felony, and alleged he did “intentionally and knowingly threaten imminent bodily injury to Charles Lee Epps with the use of a deadly weapon, namely, a handgun.” The court in its judgment, however, found the appellant guilty of Class A misdemeanor assault.

V.T.C.A., Penal Code, Sec. 22.01 in pertinent part provides:

“(a) A person commits an offense if he: “(1) intentionally, knowingly, or recklessly causes bodily injury to another, including his spouse; or

“(2) intentionally or knowingly threatens another with imminent bodily injury, including his spouse; or

“(b) An offense under Subsection (a)(1) of this section is a Class A misdemean- or ...

“(c) An offense under Subsection (a)(2) of this section is a Class C misdemeanor

“Causes bodily injury to another” thus is an essential element of a Class A misdemeanor assault. Sec. 22.01(a)(1), supra. Appellant contends the evidence is insufficient to support his conviction because there is no evidence he caused bodily injury to another.

The State argues, “it is obvious from the record that the court found it in the interest of justice to enter a judgment of guilt and punish for a Class A misdemeanor pursuant to the authority granted by” V.T. C.A. Penal Code, Sec. 12.44. Sec. 12.44 provides in pertinent part:

“Reduction of Third-Degree Felony to Misdemeanor.

“(a) A court may set aside a judgment or verdict of guilty of a felony of the third degree and enter a judgment of guilt and punish for a Class A misdemeanor if, ... the court finds that such sentence would best serve the ends of justice.”

The record reflects the following:

“THE COURT: Anything further from either side, gentlemen? Any argument?

“MR. ROYCE [prosecutor]: No, Your Honor.

“MR. DENISCO: I would like to say one or two words, Your Honor, in defense of Mr. Burkholder ...

“MR. ROYCE: I have nothing, Judge.

“THE COURT: Stand up, please. Daniel Edward Burkholder, the Court finds you guilty of the class A misdemeanor offense of simple assault.¹ All right, gentlemen, do you want to proceed on punishment?”

In the reported cases applying Sec. 12.44, the procedure followed is to first find the defendant guilty of the felony, and then set aside the verdict, and convict and punish as a Class A misdemeanor. See e.g., Briones v. State, 595 S.W.2d 546 (Tex.Cr.App.1980); Mahome v. State, 542 S.W.2d 177 (Tex.Cr.[542]*542App.1976); Trippel r. State, 535 S.W.2d 178 (Tex.Cr.App.1976). This approach appears to be consistent with the procedure outlined in Sec. 12.44(a), supra.

In the instant case, appellant was convicted of a Class A misdemeanor without a prior judgment or verdict of guilty of a felony, as required by Sec. 12.44. In addition there is nothing to suggest that the court found that a conviction for a lesser offense “would best serve the ends of justice.” Since the proper procedure was not followed, and since there is nothing in the record to indicate that the court was operating under Sec. 12.44, we cannot adopt the State’s position.

The record clearly reflects that appellant did not cause “bodily injury to another” as required for a conviction for Class A misdemeanor assault. V.T.C.A. Penal Code, Sec. 22.01, supra. Thus the evidence is insufficient to sustain the conviction. Because we find the evidence to be insufficient, the constitutional guarantee against double jeopardy precludes further prosecution of this cause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The judgment is reversed and ordered reformed to show an acquittal.

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[541]*541OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for assault. After finding appellant guilty, the court assessed punishment at one year, probated.

On March 31, 1978, appellant accompanied Dawn Moody Epps to her former residence. As appellant stood waiting outside the house, Charles Lee Epps, Dawn’s estranged husband, drove into the driveway and got out of his car. Words were exchanged and appellant drew a pistol. Dawn then came out of the house and as she and appellant walked to his car, appellant fired a shot. Appellant testified he did not aim the gun at Charles but instead fired it in the air; Charles, however, testified “the bullet hissed right by my ear."

The indictment charged appellant with the offense of aggravated assault, a third degree felony, and alleged he did “intentionally and knowingly threaten imminent bodily injury to Charles Lee Epps with the use of a deadly weapon, namely, a handgun.” The court in its judgment, however, found the appellant guilty of Class A misdemeanor assault.

V.T.C.A., Penal Code, Sec. 22.01 in pertinent part provides:

“(a) A person commits an offense if he: “(1) intentionally, knowingly, or recklessly causes bodily injury to another, including his spouse; or

“(2) intentionally or knowingly threatens another with imminent bodily injury, including his spouse; or

“(b) An offense under Subsection (a)(1) of this section is a Class A misdemean- or ...

“(c) An offense under Subsection (a)(2) of this section is a Class C misdemeanor

“Causes bodily injury to another” thus is an essential element of a Class A misdemeanor assault. Sec. 22.01(a)(1), supra. Appellant contends the evidence is insufficient to support his conviction because there is no evidence he caused bodily injury to another.

The State argues, “it is obvious from the record that the court found it in the interest of justice to enter a judgment of guilt and punish for a Class A misdemeanor pursuant to the authority granted by” V.T. C.A. Penal Code, Sec. 12.44. Sec. 12.44 provides in pertinent part:

“Reduction of Third-Degree Felony to Misdemeanor.

“(a) A court may set aside a judgment or verdict of guilty of a felony of the third degree and enter a judgment of guilt and punish for a Class A misdemeanor if, ... the court finds that such sentence would best serve the ends of justice.”

The record reflects the following:

“THE COURT: Anything further from either side, gentlemen? Any argument?

“MR. ROYCE [prosecutor]: No, Your Honor.

“MR. DENISCO: I would like to say one or two words, Your Honor, in defense of Mr. Burkholder ...

“MR. ROYCE: I have nothing, Judge.

“THE COURT: Stand up, please. Daniel Edward Burkholder, the Court finds you guilty of the class A misdemeanor offense of simple assault.¹ All right, gentlemen, do you want to proceed on punishment?”

In the reported cases applying Sec. 12.44, the procedure followed is to first find the defendant guilty of the felony, and then set aside the verdict, and convict and punish as a Class A misdemeanor. See e.g., Briones v. State, 595 S.W.2d 546 (Tex.Cr.App.1980); Mahome v. State, 542 S.W.2d 177 (Tex.Cr.[542]*542App.1976); Trippel r. State, 535 S.W.2d 178 (Tex.Cr.App.1976). This approach appears to be consistent with the procedure outlined in Sec. 12.44(a), supra.

In the instant case, appellant was convicted of a Class A misdemeanor without a prior judgment or verdict of guilty of a felony, as required by Sec. 12.44. In addition there is nothing to suggest that the court found that a conviction for a lesser offense “would best serve the ends of justice.” Since the proper procedure was not followed, and since there is nothing in the record to indicate that the court was operating under Sec. 12.44, we cannot adopt the State’s position.

The record clearly reflects that appellant did not cause “bodily injury to another” as required for a conviction for Class A misdemeanor assault. V.T.C.A. Penal Code, Sec. 22.01, supra. Thus the evidence is insufficient to sustain the conviction. Because we find the evidence to be insufficient, the constitutional guarantee against double jeopardy precludes further prosecution of this cause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

The judgment is reversed and ordered reformed to show an acquittal.

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660 S.W.2d 540, 1983 Tex. Crim. App. LEXIS 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkholder-v-state-texcrimapp-1983.

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