Flanagan v. State

675 S.W.2d 734, 1984 Tex. Crim. App. LEXIS 739

• Court: Court of Criminal Appeals of Texas
• Decided: September 19, 1984
• Docket: 60580
• Status: Published

Opinions

OPINION

TEAGUE, Judge.

This is an appeal from a conviction for committing the offense of attempted murder. After a bench trial on a plea of not guilty, appellant was found guilty and the trial judge assessed his punishment at 20 years’ confinement in the penitentiary.

Because the appellant challenges the sufficiency of the evidence to sustain the verdict of the trial court, it is necessary that we review the evidence. Before doing so, however, we point out that the indictment, omitting the formal introductory and concluding portions, alleges:

... that one, DENNIS LAFAINE FLANAGAN hereinafter styled Defendant, on or about the 18 day of April in the year of our Lord One Thousand Nine Hundred and 77 in the County and State aforesaid, did unlawfully, then and there, with the specific intent to commit the offense of murder, attempt to cause the death of Jerry M. Rhodes, an individual, by knowingly and intentionally shooting at Jerry M. Rhodes with a shotgun, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.

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It was thus incumbent upon the State to prove beyond a reasonable doubt each of the following elements:

(1) Appellant

(2) With the specific intent to commit the offense of murder

(3) Attempted to cause the death of Jerry M. Rhodes

(4) By knowingly or intentionally shooting at Jerry M. Rhodes

(5) With a shotgun

Jerry M. Rhodes, a Dallas police officer, testified that he got off duty at 12:30 o’clock a.m. on the day in question. He then proceeded in his pickup motor vehicle to his residence. While traveling in his pickup truck on R.L. Thornton Freeway in Dallas, Rhodes observed an automobile that was traveling in the same lane of traffic he was in. The automobile was approximately 75 to 80 feet in front of him. Rhodes was traveling between 50 and 60 miles per hour throughout the times mentioned herein. His attention became attracted to the other vehicle due to the erratic movements the vehicle was making, which included weaving on the freeway. When Rhodes’ vehicle was approximately 50 feet from the other vehicle, he “noticed what appeared to [him] to be a shotgun blast [from the passenger side of the other vehicle] go toward the front of [his] vehicle.” Rhodes testified: “It appeared to me that a gun had been shot toward the front or east of me fired forward.” Thornton Freeway, where this occurred, is a four-lane roadway. Rhodes, who identified appellant as the person who fired the shotgun, testified that appellant “was sticking part of his body out of the vehicle, out of the window.” Rhodes testified that appellant fired the shotgun “directly at me”. However, Rhodes did not sustain any type injuries. Pellets from the firing of the shotgun struck only the front of the pickup, causing very minor damage to the center of the grill and the hood. Rhodes also testified that in his opinion the shotgun, which was not offered in evidence, was a “single barrel shotgun.” The spent shell, which was not recovered, was described by him as “a green shotgun shell.” In Rhodes’ opinion, the damage done to his vehicle “was done by birdshot. Sounded like little B-B’s hitting it or something.” He also testified that the shotgun blast placed him in fear of his life and “scared him”, which, of course, is understandable. Only one shot was fired from the shotgun.

Although armed with his police pistol, Rhodes did not attempt to use it, because other vehicles were traveling on the freeway and business establishments were located nearby on the feeder road to the freeway.

After the shotgun blast, Rhodes continued traveling on the freeway in the same direction as the other vehicle. After traveling approximately fifteen blocks, the other vehicle slowed down and Rhodes passed it. Both vehicles, however, continued traveling in the same direction until Rhodes turned off the freeway at the Interstate 20 exit. At that time, the driver of the other vehicle began to accelerate the speed of his vehicle. Rhodes, however, maintained the other vehicle in his view and wrote down a partial license plate number. He then continued traveling to his residence. After arrival, he called the Mesquite Police Department and reported the incident to that law enforcement agency. Later that morning, he went to the Mesquite Police Department where he saw the appellant and another person, apparently appellant’s brother, in custody. At the police station he identified appellant as the person who fired the shotgun. Prior to the night in question, he had never before seen the appellant.

Although Rhodes testified that he had had experience with shotguns, he was unable to express an opinion as to whether a shotgun, using birdshot, that was fired at a distance of 50 feet, would “break the windshield of a car.” However, the evidence and testimony showed that no damage was done to the windshield of the pickup truck.

Charles A. Golden also testified for the State and he testified that near the time of the incident involving Rhodes, at another location, he observed an unidentified person “hanging out the window [of an automobile] with a shotgun. He was holding it about like this, you know, hanging out the window just holding the gun like this.”¹ Golden relayed over his “CB” radio, to unnamed friends² with whom he was conversing at the time, a message of what had happened. “Well, I told them what had happened and I gave the license number three or four times, you know, to make sure it was understood.” Golden was not asked, nor did he testify as to the description of the other vehicle, the description of the persons in the other vehicle, or what the license number was that he gave to “them”.

Appellant also testified. He admitted he was in the vehicle described by Rhodes. However, he testified it was his brother who was displaying and “shooting [a shotgun] at the lights on the roadway.” (Emphasis added) Appellant also testified as follows:

Q: (Mr. Hight, the prosecutor): It’s your testimony that essentially everything we’ve talked about here did happen. It was just your brother and it wasn’t you?

A: (Appellant): Yes, sir.

We are confronted at the outset with the following factual question:

Whether the shooting of a single barrel shotgun by a person in one motor vehicle toward another vehicle, a pick-up truck, with both vehicles traveling between 50 and 60 miles per hour at the time, with the distance between the vehicles being approximately 50', with the shell described as containing birdshot, with the bird-shot striking approximately the center of the front grill of the other vehicle and doing very minor damage, is sufficient evidence to sustain the element of the specific intent to kill the driver of the second or other vehicle, who did not sustain any bodily injuries?

Based upon the above facts, we answer the question in the negative, and hold that the evidence presented by the State in this cause is insufficient to show that appellant had the specific intent to kill Rhodes when he fired the shotgun.

To support the conviction, the State relies on several general principles of law, 1.e., a shotgun is a deadly weapon per se, see McClennon v. State, 492 S.W.2d 524 (Tex.Cr.App.1973); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Burks v. State, 165 S.W.2d 460 (Tex.Cr.App.1942), and the intent to commit murder may be inferred from the use of a deadly weapon per se. We agree with the State that those are sound and reasonable principles of law. However, whether a valid inference from a given set of facts, where one person shoots at another with a shotgun, may be deduced to reflect a specific intent to kill depends upon the factual context in which the shooting occurred. “Simply because a man shoots at another [with a shotgun] does not necessarily make it an assault with intent to murder.” Cooper v. State, 60 Tex.Cr.R. 411, 132 S.W. 355 (1910); Montalvo v. State, 31 Tex. 63 (1868). “The element of the manner of use of such weapon must always be taken into consideration. A shotgun [fired at such] range as to make it reasonably apparent that death or serious bodily injury could not result from its use would not be legally a deadly weapon. Scott v. State, 46 Tex.Cr.R. [315] 317, 81 S.W. 952.” Medford v. State, 86 Tex.Cr.R. 237, 216 S.W. 175, 177 (1919). See also Burks v. State, supra; Cooper v. State, supra; King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677 (1958); Neal v. State, 534 S.W.2d 675, 676 (Tex.Cr.App.1975). If the type of shot fired from a shotgun is incapable of inflicting death, the mere firing of the shotgun by one person at another will not, without more, permit the inference that the shotgun was fired with the specific intent to kill.

It is therefore clear from the above decisions of this Court that before the specific intent to cause the death of another person may be inferred from the firing of a shotgun by one person at or toward another person, it must additionally be shown that the firing of the shotgun occurred with the capacity and under such circumstances as are reasonably calculated to produce the death of the other person. However, each case must be viewed in its own setting. In that regard, compare the facts of this cause with those found in Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583 (1953).

Cases which this Court has reversed, because the evidence was ruled insufficient to sustain the element of specific intent to kill, where one person fired a shotgun at another, are highly instructive. Notwithstanding that the facts in the case at bar and those stated in Burks v. State, supra, are different, we find what this Court stated in that decision is applicable to this cause. In Burks, the defendant was convicted on a plea of guilty to the charge that he had committed the offense of assault with intent to murder. Trial was to the court. Although the defendant had pleaded guilty to the charge, the issue on appeal concerned whether the evidence was sufficient to sustain the plea, and, in turn, the verdict rendered by the trial judge. This Court held that the evidence was insufficient to sustain the plea and ordered the conviction reversed. The facts as set out in the opinion reflect that the defendant fired a shotgun at another person at a distance of 75 feet. When the shot-pattern reached the intended victim it had spread sufficiently that one of the shot penetrated the victim’s hat while another shot entered a shirt sleeve of the victim. However, the victim was uninjured. This Court held that the trial judge was not authorized to render the judgment of conviction because the evidence was insufficient to establish that the defendant had the necessary intent to kill his victim. In arriving at its result, this Court stated in the abstract and applied to the cause several rudimentary principles of law, namely:

If appellant shot Mitchell with no intent to kill him, he would not and could not be guilty of assault with intent to murder, because a specific intent to kill is an essential ingredient of that offense. Such is made so by the statute ... The instrument with which the assault is committed may be looked to in determining the grade of assault. Ordinarily, when an assault is committed with a deadly weapon, the intent to kill may be inferred ... The instrument used in the instant case being a shotgun, it was, in the manner used, a deadly weapon per se. But to shoot at another with a gun does not necessarily constitute an assault with a deadly weapon or an assault with intent to murder. The shot must be fired under such circumstances as are reasonably calculated to produce the result intended. Hence if the intended victim be at such a distance as to be out of range of the gun, the intent to kill may be lacking.

See also, Neal v. State, supra.

In the instant case, the only evidence of appellant having the specific intent to cause the death of Rhodes, a required element of the offense of attempted murder, is the firing of the shotgun toward the vehicle driven by Rhodes, which was then traveling between 50 and 60 miles per hour, with pellets from the blast only striking the front part of Rhodes’ vehicle. Yet, there is no testimony or evidence that this shotgun, which was fired from “approximately fifty feet”, was capable of causing death. The actual damage Rhodes’ vehicle sustained was two “B.B.” sized dents in the front grill and some chipped paint in the hood. There was no damage done to the front windshield of the vehicle. Rhodes did not sustain any bodily injuries. The minor damage done and the lack of injuries indicates to us that “this” shotgun blast, at least at the stated range and under the circumstances, was not capable of causing death. Furthermore, when the shotgun was fired, Rhodes was shown to be within the cab of the pickup truck, which also indicates to us that because of the distance between the vehicles he had a certain amount of protection from being physically struck by the pellets which came from the shot fired from the shotgun. The shotgun that appellant fired was never offered in evidence and there is not any showing by the State to account for its whereabouts, although the facts inferentially show that both appellant and his brother were arrested together at an unknown time and place by unknown officers of the Mesquite Police Department not very long after the incident involving Rhodes took place. Rhodes also testified that after the shooting occurred, he observed the spent shell casing bounce on the freeway, but he never made any effort to recover it. Thus, we are without testimony or evidence to show the size, weight, or what type shot was in the shell easing. Rhodes did testify, however, that in his opinion the shot consisted of pellets and not lead balls.

Although we find the conduct of appellant reprehensible, we are, nevertheless, unable to conclude from the facts and circumstances presented that the State proved beyond a reasonable doubt that the appellant, when he fired the shotgun, had the specific intent to kill Rhodes. Although this Court is duty bound to review a sufficiency of the evidence claim in a light most favorable to the verdict of the fact finder, see Johnson v. State, 93 Tex.Cr.R. 150, 245 S.W. 710, 711 (1922); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we are also Constitutionally bound to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.

... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, no. 12, 99 S.Ct. 2781, 2789, no. 12, 61 L.Ed.2d 560 (1979). See also Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981). Applying that standard to the case before us, we hold that the State has failed to present sufficient evidence of specific intent to kill Rhodes.

The judgment is reversed. No further prosecution shall be had for the offense of attempted murder of Rhodes, but should the State determine that the appellant is guilty of a lesser included offense of attempted murder of Rhodes it is free to prosecute the appellant for committing that offense. See Rogers v. State, 575 S.W.2d 555, 559 (Tex.Cr.App.1979); Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978).

DALLY, J. concurs.

Before the court en banc.

1 . As to what "like this” actually means, we are unable to say, because the statement, "Like this", is all that is in the record before us.

2 . The persons Golden spoke to over his "CB” radio did not testify.