Lambert v. State

649 S.W.2d 689, 1983 Tex. App. LEXIS 4044
CourtCourt of Appeals of Texas
DecidedFebruary 24, 1983
DocketNo. 12-81-0099-CR
StatusPublished
Cited by2 cases

This text of 649 S.W.2d 689 (Lambert 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
Lambert v. State, 649 S.W.2d 689, 1983 Tex. App. LEXIS 4044 (Tex. Ct. App. 1983).

Opinion

COLLEY, Justice.

Appellant was convicted by a jury of the offense of attempted murder and, at appellant’s election, punishment was assessed by the trial judge at twenty years confinement in the Texas Department of Corrections. Appellant’s motion for new trial (at which no evidence was offered) was overruled, sentence was pronounced and appellant timely gave notice of appeal.

Appellant presents fourteen grounds of error (brief prepared and filed by counsel appointed for purposes of this appeal).

In his first ground appellant contends that the indictment is fundamentally defective in that said indictment failed to allege that appellant “... having at the time [of stabbing the victim] the specific intent to commit the murder of Vickie Be-noit.” Appellant’s argument seems to be that a “specific intent” rather than a “general intent” is required under Section 15.-01(a), V.T.C.A., Penal Code,1 citing Price v. State, 523 S.W.2d 950 (Tex.Cr.App.1975). Price construed former Article 1160a, Vernon’s Annotated Penal Code, describing the offense of “deadly assault on a peace officer” and holding that failure to allege “with intent to murder” rendered the indictment fatally defective because the intent to murder the assaulted peace officer was a material part of the statutory description of the offense. Omitting the formal parts, the indictment in the instant case reads: “... [defendant] did then and there unlawfully attempt to cause the death of Vickie Benoit by cutting and stábbing her with a knife, having the intent to commit murder.” (Emphasis added.) The indictment does in fact allege a specific intent required by Section 15.01(a).

Appellant also cites Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976), and Telfair v. State, 565 S.W.2d 522 (Tex.Cr.App.1978), in support of his argument that a “specific intent to commit an offense” must be alleged in any indictment charging criminal attempt under Section 15.01(a). Baldwin is not in point since it involves attempted murder under Section 19.02(a)(2) and Section 15.01(a), while in the case before us the indictment charges the attempted murder of Vickie Benoit under Section 19.02(a)(1) and Section 15.01(a). . Telfair, as well as Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978), dealt with indictments charging attempted murder in the language, “... attempted to cause the death ... . ” and the indictments in Telfair and Dovalina were upheld without the allegation found in the indictment in this cause, “... having the intent to commit murder.”

There is no merit to ground one and it is overruled.

In ground number two appellant attacks the sufficiency of the evidence to support the conviction. The gist of appellant’s argument under this ground is that there was no evidence adduced before the jury of a specific intent to cause the death of the victim in this case.

A brief discussion of the evidence is necessary to an understanding of our disposition of this ground. On September 7,1978, (date of offense) appellant went to the home of the victim Vickie Benoit, a sixteen-year-old white female living with her mother, Mary Lambert, a brother, Jay, and a sister, Janet. Appellant and the victim’s mother were recently divorced, and the victim’s mother had since the divorce, and perhaps before, been keeping company with another man, George Parke, who was also present in the home of the victim on the date of the offense. Another brother of the victim, Dale Benoit, was also present in the home on the date of the offense. When [691]*691appellant knocked on the door of the residence, Mary Lambert went to the front door, opened it and talked to appellant briefly and then she advised him she would get his mail, which she did. Appellant asked Mary Lambert for a cup of coffee and was advised by Mary, “I don’t think so.” Appellant apparently at that point became angry, stated “You don’t know it yet, but you’re going to die,” and attacked Mary twice with a knife, inflicting serious bodily injury upon her. Mary managed to escape and fled down a hallway in the home towards the rear of the residence. Appellant pursued her and while he was in the hall he encountered Vickie Benoit, the victim in this case, and stabbed her once in the abdomen and then in the back with a pocket knife. The weapon was introduced into evidence. Appellant, after stabbing Mary Lambert a third time, then attacked Dale Benoit and George Parke with the same knife. Mary Lambert testified at trial that appellant hated Vickie and that he was a very heavy drinker and was “short tempered.” Mary further testified that appellant had “chased” Vickie Benoit from the home on one occasion. The stab wound to Vickie’s abdomen penetrated the abdominal cavity and perforated her “bowels” requiring surgery to repair the bowel and construction of a temporary colostomy. Vickie was in intensive care for over two months for care and treatment of her injuries. Medical records demonstrate that Vickie suffered serious bodily injury. Medical evidence introduced at trial shows that the stab wound to Vickie’s abdomen produced “massive abdominal hemorrhage” and the evidence clearly establishes that Vickie would have died without surgical intervention.

A State’s witness, David Mullican, a veteran of fifteen years experience in police investigation of crimes against persons testified that the knife used by appellant in stabbing Vickie in the abdomen was a deadly weapon, that is, the manner of its use against Vickie made it capable of causing death or serious bodily injury to Vickie.

Viewing the evidence shown by this record in a light most favorable to the verdict compels us to the conclusion that a rational trier of the facts could have found that such evidence established beyond a reasonable doubt each element of the offense, including intent to cause the death (murder) of Vickie Benoit. Appellant’s second ground of error is overruled.

By grounds three, four and five appellant complains that the trial court erred: (3) in failing to instruct the jury “... as [to] the State’s burden of proving that appellant was not acting under the immediate influence of sudden passion;” (4) “... its instruction improperly shifted the burden of proof on the issue of under the immediate influence of sudden passion”; (5) “... in improperly instructing the jury as to the appellant’s burden of proving that he acted under the immediate influence of sudden passion.” In appellant’s argument under these grounds he contends that the court’s charge is fundamentally defective because “[T]he charge fails to require the jury to find beyond a reasonable doubt that appellant was not acting under the immediate influence of sudden passion arising from an adequate cause before it [sic] could convict him of the attempted murder,” citing Ayers v. State, 606 S.W.2d 936 (Tex.Cr.App.1980). Appellant misreads Ayers. The charge in that case, as in this case, in its application of the law to the facts in charging on murder, failed to require the jury to find beyond a reasonable doubt that the defendant was not acting under the immediate influence of sudden passion arising from an adequate cause; but the charge in Ayers,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Howell v. State
827 S.W.2d 586 (Court of Appeals of Texas, 1992)
Barnett v. State
733 S.W.2d 342 (Court of Appeals of Texas, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
649 S.W.2d 689, 1983 Tex. App. LEXIS 4044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-state-texapp-1983.