Giles v. State

489 S.W.2d 286, 1972 Tex. Crim. App. LEXIS 2438

• Court: Court of Criminal Appeals of Texas
• Decided: December 20, 1972
• Docket: No. 46309
• Status: Published

Opinion

OPINION

DALLY, Commissioner.

The conviction is for assault with intent to murder without malice; the punishment, three years imprisonment.

The appellant’s only ground of error is that “the evidence is insufficient to sustain the jury’s findings of assault to murder without malice.”

The indictment charged the appellant with assault with intent to murder Johnny L. Taylor.

Rosemary Giles, the ex-wife of the appellant, lived with their two children in a house they had formerly owned and which had been awarded to her in the divorce decree. Following their divorce, she had become acquainted with Taylor, the victim of the attack, and on the night in question, Taylor was visiting her at her house and both were on the bed watching television.

At about 1:20 a. m. Mrs. Giles received a telephone call from the appellant, in which he told her, “Rose, I’m going to kill you.” She came back to the bed after the telephone call and within a short period of time a shotgun blast was fired through a window of the bedroom and the appellant “yelled, T am going to kill you both.’ ” Two more shotgun blasts were fired into the bedroom, but they did not strike either Taylor, Mrs. Giles or her young son, who was also in the room. The third shot was fired into the mattress in the bed. Appellant broke into the house and, while still holding the shotgun, told Taylor, “Now, I’m going to kill you.”

The appellant then dropped the single-shot shotgun and attacked Taylor with a long butcher knife, which Mrs. Giles said had been on the drainboard in the kitchen. The appellant repeated, “I’ve got you now. I’m going to kill you.” In the fight which followed, the victim was “stabbed” in the side and in the arm with the knife. The appellant was not subdued until after two police officers who had been summoned arrived and placed handcuffs on him.

The stab wound in Taylor’s midsection resulted in injury to the “spleen and the bowels” which required surgery and that the victim remain in the hospital for over eight days. The wounds left a four or five inch scar on his arm and after surgery, an eight to ten inch scar on his abdomen.

Some days before the night of the attack, the appellant had told Taylor that if he, Taylor, “messed around, that (he) was going to get killed.”

We find the evidence amply sufficient to support the jury’s verdict.

The judgment is affirmed.

Opinion approved by the Court.