Kelly v. State

713 S.W.2d 198, 1986 Tex. App. LEXIS 7953
CourtCourt of Appeals of Texas
DecidedJune 27, 1986
DocketNo. 07-84-0271-CR
StatusPublished
Cited by1 cases

This text of 713 S.W.2d 198 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 713 S.W.2d 198, 1986 Tex. App. LEXIS 7953 (Tex. Ct. App. 1986).

Opinion

COUNTISS, Justice.

A jury convicted appellant of injury to an elderly individual, Tex. Penal Code Ann. § 22.04 (Vernon Supp.1986), and assessed his punishment at forty years in the penitentiary. Appellant challenges the conviction by six grounds of error. By his first and second grounds, he argues that the trial court erred in overruling his objections to the charge and his requested instructions. By his third ground, he contends the trial court erred in overruling his objection to the prosecutor’s jury argument. By his last three grounds, appellant attacks the form of the indictment. We affirm.

The facts upon which appellant’s conviction is based are uncontroverted. On an October evening in 1983, Vernon Hicker-son, appellant’s elderly victim,1 was standing in front of the Khiva Shrine Temple in downtown Amarillo after a Shrine meeting, visiting with his friend William Wall. While they were visiting, appellant came along the sidewalk directly across the street from them, on the way to his rented hotel room after being asked to leave a nearby bar.

As Hickerson and Wall were talking, appellant yelled at them and asked them what they were looking at. When they ignored him, he yelled again, asking them what they were talking about. Hickerson then replied, “I don’t know if it is any of your business.” Appellant immediately charged across the street toward Hickerson and Wall, ran up to Hickerson and said, “Well, you old son-of-a-bitch, I’ll knock you on your ass.” He then hit Hickerson a terrific blow to the jaw, knocking him to the sidewalk and inflicting various injuries. Wall immediately ran into the Temple for help, and while he was gone appellant kicked Hickerson in the ribs as he lay on the ground. In response to Wall’s summons several men came out of the Temple and detained appellant until law enforcement officers arrived. Three days later, Hicker-son died when a blood clot caused by the injuries induced a heart attack.

Appellant was charged in a two-count indictment, but the State elected to try him only on the count alleging his violation of section 22.04 of the Penal Code, which criminalizes injury to an elderly person.2 That portion of the indictment states:

[O]n or about the 3rd day of October, A.D., 1983, ... BILLY GENE KELLY did then and there intentionally and knowingly engage in conduct that caused serious bodily injury to Vernon Hicker-son, an individual who was older than sixty-five years of age, by striking Vernon Hickerson with his fist,
* * * * * *

After the State presented its evidence and rested, appellant rested without presenting any evidence, and the trial court charged the jury. As pertinent to the resolution of appellant’s first two grounds of error, the court first told the jury:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
[201]*201A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The court then applied the law to the facts, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 3rd day of October, 1983 in Potter County, Texas, the defendant, BILLY GENE KELLY, did then and there intentionally or knowingly engage in conduct that caused serious bodily injury to Vernon Hickerson, an individual who was older than sixty-five years of age, by striking Vernon Hickerson with his fist, then you will find the defendant guilty of intentionally or knowingly causing serious bodily injury to an elderly individual 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 intentionally or knowingly engaging in conduct that caused serious bodily injury to Vernon Hickerson.

Appellant says, in his first two grounds of error, that the court reversibly erred in giving the abstract and general instructions on intent and knowledge, quoted above. Instead, says appellant, the court should have defined the terms in separate paragraphs that applied the definitions to the facts of this case.3 However, we have concluded that the charge is correct.

The court’s charge to the jury has three purposes. It should instruct the jury on their behavior during deliberations; it should tell them, in language they can understand, the law that is pertinent to the issues they must resolve; and it should present to them for resolution the ultimate disputed fact issues in the case. When advising the jury about the pertinent law in a criminal case, the trial court must define the legal, technical, and uncommon terms it uses, Watson v. State, 548 S.W.2d 676 (Tex.Crim.App.1977); Bickerstaff v. State, 139 Tex.Crim. 69, 139 S.W.2d 110 (1940), and it must apply that law to the facts as developed during the trial. Whitaker v. State, 146 Tex.Crim. 325, 174 S.W.2d 975 (1943). Also, in most cases, the charge should track the indictment when outlining the State’s case. Williams v. State, 612 S.W.2d 934 (Tex.Crim.App.1981).

That is what the trial court did here. It gave the statutory definitions, Watson, 548 S.W.2d 676, of intent and knowledge, Tex. Penal Code Ann. § 6.03(a) and (b), and defined various other terms, then applied the law to the facts before it.

[202]*202Appellant argues, however, that under Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App.1980) he was entitled to instructions on intent and knowledge that applied those definitions to the facts of the case. That contention is not supported by Beggs and misconceives the structure of a charge. Beggs was concerned with the defendant’s right to a defensive charge on mistake of fact, one of the statutorily recognized defenses to a criminal accusation. See generally Tex. Penal Code Ann. § 8.01 et seq., § 9.01 et seq. (Vernon 1974 and Supp.1986). It is, of course, well settled that a defendant is entitled to an instruction applying the law to the facts on the statutory defense raised by the evidence. Turpin v. State, 606 S.W.2d 907, 910 (Tex.Crim.App. 1980); Pelham v. State,

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Related

Kelly v. State
748 S.W.2d 236 (Court of Criminal Appeals of Texas, 1988)

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Bluebook (online)
713 S.W.2d 198, 1986 Tex. App. LEXIS 7953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-texapp-1986.