Richard v. State

426 S.W.2d 951

• Court: Court of Criminal Appeals of Texas
• Decided: April 3, 1968
• Docket: 40603
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, enhanced by two prior convictions for a felony less than capital, life.

Trial was before a jury on a plea of not guilty. The jury having found appellant guilty, the prior convictions were stipulated and the court assessed the punishment at life.

The sole ground for reversal presented by appellant’s brief filed in the trial court is that the evidence is insufficient to authorize a conviction of assault with intent to murder.

The indictment alleged that the assault was made on M. I. Williams.

The evidence, viewed in the light most favorable to the jury’s verdict, reflected the following:

M. I. Williams, a Houston Police Officer, was engaged in ticketing automobiles for parking violations when he was approached by Idonia Pierre who asked him — “make this man leave me alone.” * Appellant approached with a knife in his hand, shoved the officer and grabbed the woman by the neck.

During the scuffle which ensued, when the officer attempted to stop the assault on the woman with the knife, appellant inflicted a stab wound in his back and continued his assault on the woman, cutting her and holding the knife at her throat until subdued by Williams, who hit him with his pistol and tried to get the knife, and a second officer who was summoned by a passing motorist.

The evidence reflects that the knife used by appellant in his assault on the woman and on Officer Williams was a two bladed pocket knife approximately 5 inches in length with an open blade about 3 inches in length — and that appellant cut at the woman’s throat with the knife repeatedly before the officers finally got it away from him, and put handcuffs on him.

Idonia testified that she had lived with appellant about two years and that “he was after me — I did see him cut at the officer but he was cutting at me. He wasn’t cutting after the officer.”

She further testified:

“A. * * * he was trying to cut me but he did cut the officer first.

“Q. Then he cut you ?

“A. Yes.

“Q. Where did he cut you?

“A. Here, on my neck.

“Q. You are pointing underneath your chin, on the left side of your neck?

“A. Yes.

“Q. Did he cut you any other place on your body ?

“A. Well, my hand.

“Q. He cut you on your hand?

“A. Yes, sir, and I swear if it hadn’t of been for this headscarf was tied around my head when he threw me, if it hadn’t been for this headscarf I might have been dead.”

Officer Williams’ wound was described as a stab wound just to the right of the vertebral column in the upper part of his back, with no apparent serious effect.

There was testimony to the effect that the knife was an instrument capable of producing death, but the chances of hitting a vital organ in the position of the stab wound would be minimal.

If the weapon used is not deadly, the intent to kill on the part of the accused may be ascertained from and shown by the surrounding facts and circumstances.

If it is possible that death might have been inflicted by the weapon used and if the accused intended thereby to take life by the use made thereof, the offense of assault with intent to murder is complete, even though the instrument used was not a deadly weapon. Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744; Gipson v. State, 403 S.W.2d 794; Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 1016; Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219.

The evidence is clearly sufficient to sustain a finding that appellant’s assault upon Idonia Pierre was with intent to take her life. Viewed in the light most favorable to the state, we conclude that the evidence is sufficient to sustain the jury’s finding that the assault upon the officer who was attempting to protect the woman from such assault was with the same intent; that is with intent to kill.

The judgment is affirmed.