Danford v. State

653 S.W.2d 436, 1983 Tex. Crim. App. LEXIS 1122

Opinion

OPINION

W.C. DAVIS, Judge.

Appellant was convicted of attempted murder. The court assessed punishment, enhanced under V.T.C.A., Penal Code, § 12.42(d), at life imprisonment.

Appellant contends the evidence was fatally at variance with the indictment, which alleged that appellant attempted to kill the complainant by shooting him with a gun, in that the evidence showed only that appellant fired five shots at the complainant, who was unharmed.

In Windham v. State, 638 S.W.2d 486 (Tex.Cr.App.1982), the court, in ruling that a fatal variance existed between the allegation that a defendant shot at a complainant and proof that, though the defendant squeezed the trigger, his gun did not discharge, overruled Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976), in which proof of shooting at had been held sufficient to sustain a conviction for attempt under an indictment alleging shooting.

We are bound by the holding of the en banc court in Windham,1 supra, and the judgment is therefore reversed with instructions to enter a judgment of acquittal.

1 . The author of this opinion dissented in Wind-ham and adheres to the belief that an allegation of attempted murder by shooting with a gun is sufficiently proven by evidence that five shots were fired at the intended victim. The majority of the court has spoken to the contrary, however.