BRIEF FOR APPELLEE IN STATE COMPETITION
1973, FREDRICK ALFREDSIGNIFICANT Y.
THE STATE OF TEXAS
WYNETTE J. HEWETT
JUDITH J. LARSON
JERRY
K.
SAWYER
No. 73-0OI
In The
COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
FREDRICK ALFRED SIGNIFICANT.. "
Appellant,
v.
THE STATE OF TEXAS .
Appellee.
On Appeal from the District Court No. 3
Tarrant County, Texas "
BRIEF FOR APPELLEE
Texas Tech
University
School of Law
Lubbock, Texas
Wynette J. Hewett
Judith J. Larson
Jerry K. Sawyer
June 16, 1973
Attorneys for Appellee.
INDEX
Page
Index of Authorities ... ... .. .......... .... ... ...... ..... ..... ... ...... iii
Nature of the Case ... ..... ..... ..... .. .. ... ... .. ... .. ... .. ... .. .. .... .
Appellee 's Counterpoints ........... ... .... ..... ..... .... ... .. ...... . 2
Statement of Facts .... .... ...... ..... ..... ... .... ........ ... .... ..... .. 2 .
Summary of Argument ... ... ... .. ... .... ... ..... ... .. ..... .... ....... 4
Argument and Authorities .......... ... ........ ...... .... .. ... ....... 6
COUNTERPOINT I. THE TRIAL COURT
CORRECTLY UPH ELD THE INDICTMENT
BECAUSE IT CLEARLY AND SUFFICIENTLY
CHARGES A VIOLATION OF ARTICLE
116Oa ..... ..... ..... .... ..... ..... ..... .. ........ ....... ..... .... .. ..... . 6
A. The indictment alleges each element
of the article 1160a offense . ... .. ........... ....... ....... ... 6
B. The indictment does not allege the
e lements of the article 341 offense . ...... .. ............ ... 9
C. The indictment charges an offense
greater than the article 1160 offen se ... ...... ..... ... ... .. 12
D. The State was entitled to charge the
graver offense of article 116Oa .... ........ ...... .... ... .... . 14
COUNTERPOINT II. THE TRIAL COURT
. CORRECTLY UPHELD THE INDICTMENT
BEC AUSE IT SUFFICIENTLY ALLEGES THAT
OFFICER ABALONE WAS PERFORMING HIS
OFFICIAL DUTY AT THE TIME OF THE
OFFENSE ..... ....... ...... ........ ... .. .. .. .... ... ..... .. ..... ...... 15 .
A. It is unnecessary to allege the
particular duty , the officer is performing
at the time of the offense .. .. ..... ... .... ........ ..... ....... 16
B. It is unnecessary to plead the
State's evidence in the indictment ..7.. .... ...... ... .. .... . 18
II
INDEX (Continued)
COUNTERPOINT III. THE TRIAL COURT
CORRECTL Y UPHELD THE
INDICTMENT BECAUSE
IT ALLEGED SUFFICIENT FACTS TO
CHARGE A VIOLATION OF ARTICLE 1160a
AND TO PROVIDE NOTICE OF THE
PUNISHMENT .... ..... ........... ..... ...... . ~ ... ... ... .... .. ..... 22
COUNTERPOINT IV . THE TRIAL COURT
ADJUDGED APPELLANT GUILTY OF ARTICLE
116Oa. IN ACCORD WITH THE LAW AND
SUPPORTED BY THE EVIDENCE ..... ..... .... .. .. ... .... 24
A. The verdict is supported by
the evidence ............. .. ............. .. .... .. ........ ..... ..•.25
B. The ve rdict and judgment are
according to the law .. .. ..... ........ ...... ... ...... .... ... .... 32
CONCLUSiON .. ..... ... ...... .. ...... .... .... ... .. .. .. .... .... ... ..... 34
APPENDiCES ...... ..... ................ ....... ..... .. .. .. .. .... .. .. ... 35
INDEX OF AUTHORITIES
Cases
'III
Page
Aguilar v. State. 468 S. W .2d 75
(Tex. Crim. App. 1971) ... ................ ...... ...... .... .. .. ... .. 25
Armstrong v. State. 106 Tex. Crim.
496. 293 S.W. 817 (1927) ... ....... ... .. .............. ... .......... 15
Baker v. State. 123 Tex. Crim. 209,
58 S.W.2d 534 (1933) .... ... ......... ....... .................... .... 21
Bashara v. State; 84 Tex. Crim . 263.
206 S.W. 359 (1918) ............................. .. ... ... ........ .... 23
Bedwell v. State, 142 Tex . Crim. 599.
155 S.W.2d 930 (1941) ..... .. ... ............ ........ ...... .... 19. 20
Brooks v. State, 139 Tex. Crim. 193 ,
139 S.W.2d 805 (1940) ... .... .. ....... .... ............. ............ 25
Burck v. State. 132 Tex. Crim. 628,
106 S.W.2d 709 (1937) ....... .... .... ............ .......... .... .... 23
Burney v. State, 171 Tex. Crim. 274,
347 S.W.2d 723 (1%1) .......... ... .. ........ , .. ... .. ..... .... .... ... 9
Cousins v. State, 154 Tex. Crim. 5,
224 S.W.2d 260 (1949) .............. ... ... ........ ................. 20
Crow v. State, 152 Tex. Crim. 586,
.
216S.W.2d 201 (1948) ..... ...... ......... ......... ............. ... 18
Daughtery v. State, 153 Tex. Crim. 8,
216 S.W.2d 222 (1949) ....... ......... ........ ....... ........... ... 27
Duckett v. State, 454 S.W.2d 755
(Tex . Crim. App. 1970) .... .... .. ....................... ......... ..24
Estrada v. State, 479 S.W.2d 316
(Tex. Crim. App. 1972) ........ .. .... ... .. .... ..... ...... ... . 29. 30
Ex Parte Simon, 469 S.W.2d 804
(Tex. Crim. App. 1971) ..... ........ ·........................... ... . 15
Franklin v. State, 37 Tex. Crim. 113,
38 S.W. 1016 (1897) ............. ... .............................. :. 29
IV
INDEX OF AUTHORITIES (Continued)
Friday v. State. 117 Tex. Crim. 37.
36 S.W.2d 1036 (1931) ..... .................. ... .... ..... .. ....... . 13
Flores v . State. 487 S.W.2d 122 (Tex.
Crim. App. 1972) .. .. ... ... .... ... ... ............ ... .... .... ... .13. 14
Gray v. State. 77 Tex. Crim. 221.
178 S.W. 337 (1915) .. ............ ........ ....... .... ..... ............ 7
Green v. State. 171 Tex. Crim. 401.
350 S.W.2d 560 (1961) ... ..... .. ............... ............... .. ... 31
Greeson v. State. 408 S.W.2d 515
(Tex. Crim. App. 1966) ....... ............ .. .............. ... .... .. 20
Hackett v. State. 172 Tex. Crim. 414.
357 S.W.2d 391 (1962) .. .. .. ... ................. ........ ..... ...... 31
' Hadley v. Stale. 151 Tex. Crim. 27.
205 S.W.2d 374 (1947) .. .... ....... ...... .... .... ..... ...... ....... 19
Hall v. State, 158 Tex. Crim. 243 .
254 S.W.2d 523 ( 1953) .. .. .. ...... ......... ... .... ........ .... .. ... 25
Hall v. State. 418 S.W.2d 810 (Tex.
Crim. App. 1967) .... ..... .... .... ... .. ...... ... ................. .... 27
Haywood v. State. 482 S.W.2d 855 (Tex.
Crim. App. 1972) ... ....... ... ............... ... .. ·.. ... .. ...... .... .. 33
Hill v. State. 456 S.W.2d 699 (Tex.
, Crim. App. 1970) .. .. .... .... .... .. .... .... .. .. ...... .... .. .. .. .. .. .. 25
Horn v. State, 463 S.W.2d 14 (Tex.
Crim. App. 1971) .. .... ........ .... .. .. .. .. ...... ........ ; .... .. 16. 17
Howard v. State . 116 Tex. Crim. 8.
32 S.W.2d 858 (1930) .... .. .. .......... .. ........ .. .. .... .... .. .. ....26
Hughes v . State. 439 S.W.2d 352 (Tex.
Crim. App. 1969) .... .... .. .... .. .. .... .. .. .... .................. .... 31
Jeanes v, State. 60 Tex. Crim. 440.
132 S.W. 352 (1910) .. ........ ................ .. ........ .. ...... .... 18
Jennings v. State. 367 S.W.2d 670
~Tex . Crim. App. 1963) .... .. .. .. .. .. ...................... ... 26. 33
INDEX OF AUTHORITIES (Continued)
v
Jones v. Slale. 472 S.W;2d 515
(Tex. Crim. App. 1971) .... .... .... .... ..... ... ........ .. ... ....... 25
Klechka v. Stale. 475 S.W.2d 257
(Tex. Crim. App. 1972) .... ............ .. ....... ... ... ...... ... ... . 29
Leos v. Slale. 155 Tex. Crim. 487.
236 S.W.2d 817 (1951) .... .......... ............................... 21
Lopez v. Slate. No. 46052 (Tex. Crim.
App .. May 16. 1973) ....................................... .. ....... 23
Lydia v. Slale. 486 S.W.2d 791 (Tex.
Crim. App. 1972) .... .............. .. ........... ... ................ .. . 9
McKenzie v. Slate. 116 Tex. Crim. 395.
II S.W.2d 172 (1928) ...... .. ............... ......... .. ... ......... . 25
McKenzie v. Slale. 450 S.W.2d 341
(Tex. Crim. App. 1969) .. ...... .. .. .... ........... ....... .... .. .. .. 19
Maedgen v. Slale. 132 Tex. Crim. 397.
104 S.W.2d 518 (1937) ............................................... 9
Manning v. Slale. 162 Tex. Crim. 329.
284 S.W.2d 903 (1955) ............................................. 33
Mesa v. Slale. 462 S.W.2d 600 (Tex.
Crim. App. 1971) ......................... ........ ·.................... 9
Neslor v. Stale. 121 Tex. Crim. 22.
51 S.W.2d 399 (1932) .......................................... 16. 19
Nogueira v. Slale. 125 Tex. Crim.
631. 69S.W.2d 101 (1934) ........................................ 23
Norlhern v. Stale. 150 Tex. Crim.
511.203 S.W.2d 206 (1947) ............................ .... ..... .. .8
Olde v. Slale. 139 Tex. Crim. 288.
.
139 S.W.2d 595 (1940) ............................................. 12
Palomo v. Slate. 157 Tex. Crim. 443.
249 S.W.2d 208 (1952) .. .. .......................................... 20
Perez v. Slale. 114 Tex. Crim. 473.
22 S.W.2d 309 (1929) ........ . .... ...................... ........ .. ... 11
VI
INDEX OF AUTHORITIES (Continued)
Peter v. State, 148 Tex . Crim. 475 ,
188 S.W.2d 178 (1945) ..... ........ ..... ..... ... ... ........ ..... .. . 20
Pogue v. State, 474 S.W.2d 492 (Tex.
Crim. App. 1971) .. ........... .... ...... ... ............ ... ..... ...... 26
Poteet v. State, 138 Tex . Crim. 9,
133 S.W.2d 581 (1939) .. ....... .. .. .. .... .. .... .... ... ... ...... ... . 24
Redd v. State, 452 S.W.2d 919 (Tex.
Crim. App. 1%9) ... ... ... ... ........... .. ........... ... .. .... ... .... 30
Sasser v. State, 131 Tex. Crim. 347,
98 S.W.2d 211 (1936) ..... .... ... ...... .. .... ..... .... ....... .. ..... 33
Simms v. State, 167 Tex. Crim. 315,
319 S.W.2d 717 (1958) .. ... ... ....... .. .... .... .. ...
18, 30, 31
Snodgrass v . State, 147 Tex. Crim.
408, 181 S.W.2d 284 (1944) ................. ....... .. .. ... .... ..... 8
Stallings v. State , 476 S.W.2d 679
(Tex. Crim. App. 1972) ... ......... ......... ... .......... .. : ..29, 33
Streets v. State, 148 Tex . Crim. 517,
188 S.W.2d 582 (1945) .. ....... ........ .. .... ..... .. ... ... ...... ... 28
Swilley v. State , 114 Tex . Crim. 228,
25 S.W.2d 1098 (1929) ...... .... .. ... ... , ..... ...·...... .. ....... ... 32
Tapley v. State, 158 Tex. Crim. 495,
' 256 S.W.2d 583 (1953) ...... .... ... ....... ..... ........... ... ...... 29
Terry v. State, 471 S.W.2d 848 (Tex.
Crim. App. 1971) ........ ..... ........ ........ .. .. ..... ...... .... .... 21
Thompson v. State,426 S.W.2d 242
(Tex. Crim. App. 1%8).... ...................... .... .... .. ...
18
Todd v. State, 89 Tex. Crim. 99,
229 S.W. 515 (1921) .. .. ...... ............ .. .. ... .. .... .. .... .. 12, 14
Townsend v. State, 121 Tex. Crim.
79,51 S.W.2d 6% (1932) .... .. .... .. .... .. .... .. .... .. ............. 9
Walker v. State, 150 Tex. Crim. 421,
201 S.W.2d 823 (1947) ...... .. ...... .. .... .. ........ .. ....... ...... 28
INDEX OF AUTHORITIES (Continued)
VII
Ware v. State, 475 S.W.2d 282 (Tex.
Crim. App. 1971) .................................................... 25
Watson v. State, 466 S.W.2d 783 (Tex.
Crim. App. 1971) ... ...... ... ............... .... ... .. ............... .28
Welcome v. State, 438 S.W.2d 99 (Tex.
Crim. App. 1969) .................................................... 13
Willi ams v. State, 491 S.W.2d 142 (Tex.
Crim. App. 1973) ............................ ..... .. .......... .. 9, 20
Wilson v. State, 80 Tex. Crim. 622,
193 S.W. 669 (1917) .......... .. ....... ... ... .. .. .. .... •. .... .. .. ... 21
Wingate v. State, 487 S.W.2d 89
(Tex. Crim. App. 1972) .. .. .. ........ ... ..•... .. : .............. 8, 13
Zapata v. State, No. 45892 (Tex.
Crim. App. , April 25, 1973) .... ... .... ... ....... .. .. .... ... .. .... ..9
Zewig v. State, 74 Tex. Crim. 306,
. 171 S.W. 747 (1914) .. ...... ............ .. .. ...... .... ...... .... .... ..6
Codes, Constitutions, Statutes
TEX. PENAL CODE ANN. art. 341
(Supp. 1972) ............................................6, 10. II . 12.
15. 17. 18
TEX. PENAL CODE ANN. art. 1138
( 1961) .... .. .... ..... ........... .... .... ... .... ............ .. .... ...... .. 27
TEX. PENAL CODE ANN. art. 1147(1)
(Supp. 1972) ............ .. ............ .. .... .......... ........ .. . 17, 18
TEX. PENAL CODE ANN. art. 1160
(Supp. 1972) ................................................. 6. 10. 13.
14, 15, 17
TEX. PENAL CODE ANN. art. II60a
(Supp. 1972) .................... .. .......... .... .... .6, 9. 10. 12-18.
. 23. 24, 27, 34
TEX. CODE CRIM . PROC. ANN. art.
2. 12 (Supp. 1972) ...................... ................ ...... ...... .. 31
viii
INDEX OF AUTHORITIES (Continued)
TEX. CODE CRIM. PROC. ANN. art.
2.13 (1966) ................................... .... ...... .. .......... ... .32
TEX. CODE CRIM. PROC. ANN. art.
21.02 (1966) ............................................................. 9
TEX. CODE CRIM . PROC. ANN. art.
21.03 (1966) ..... ...... ... ... ... ... ... ... .. ..... ..... .. .. ... ...... .. 6, 23
TEX. CODE CRIM. PROC . ANN . art.
21.04 (1966) ........................................................... 24
TEX. CODE CRIM . PROC. ANN. art.
21.11 (1966) .. ............................ .. .......... .. ................. 9
TEX. CODE CRIM. PROC. ANN . art.
21.17 (1966) .. ............ .. .......................... ...... .. .. ....... 14
TEX. CONST. art. I, § 10 .. ................................ ...... .... .6
Miscellaneous
Stout, Criminal Procedure Should Be Revised,
25 TEXAS L. REV . 613 (1947) ................................... 8
TEX. PENAL CODE, PROPOSED REVISION,
§22.03 (Oct. 1972) ............................. ...................... 32
No. 73·001
In The
COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
FREDRICK ALFRED SIGNIFICANT.
Appel/ant,
v.
THE STATE OF TEXAS.
Appel/ee.
On Appeal from the District Court No. 3
Tarrant County, Texas
BRIEF FOR APPELLEE
To the Honorable Court of Criminal Appeals:
NATURE OF THE CASE
The State, pursuant to Bill of Indictment No. 85004 issuing from the Grand Jury of Tarrant County, Texas, instituted proceedings against appellant in the Tarrant County
Criminal District Court No.3, for the offense of assault
2
upon a peace officer with intent to murder. Appellant was
found guilty, judgment was entered upon the verdict, and
appellant was sentenced to confinement in the Texas Department of Corrections for life. He filed a motion for new
trial, which the District Court denied, whereupon he instituted this appeal.
APPELLEE'S COUNTERPOINTS
I. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT CLEARLY AND SUFFICIENTLY CHARGES A VIOLATION OF ARTICLE
116Oa.
II. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT SUFFICIENTLY ALLEGES
THAT OFFICER ABALONE WAS PERFORMING HIS
OFFICIAL DUTY AT THE TIME OF THE OFFENSE.
III. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT ALLEGED SUFFICIENT
FACTS TO CHARGE A VIOLATION OF ARTICLE
1160a AND TO PROVIDE NOTICE OF THE PUNISHMENT.
IV. THE TRIAL COURT ADJUDGED APPELLANT
.
GUILTY OF ARTICLE 1160a, IN ACCORD WITH
THE LAW AND SUPPORTED BY THE EVIDENCE.
STATEMENT OF FACTS
The appellant, Fredrick Alfred Significant, was indicted
and tried for assault upon a peace officer with intent to
murder. He was found guilty at trial and sentenced by the
jury to life imprisonment. Appellant filed a motion for new
trial which the trial court denied-whereupon he instituted
this appeal.
3
The incident
On January 6, 1973, Fort Worth Police Officer John Q.
Abalone responded to a radio call reporting a disturbance.
He drove his patrol car to 2521 Vera Cruz Street. (R. 34).
Officer Abalone, in uniform with a badge on his cap and
jacket, identified himself as a policeman. He was instructed: "Go mind your own God damned business. We
don't need no policeman here." He was then warned: "Get
out of here or I'll kill you." (R. 35, 36).
As Abalone stepped back, the appellant threw open the
door and fired a shotgun. The officer was wounded in the
left side. (R . 37). U\,<>n the arrival of Police Officers Yoker
and Bilbo, the appellant emerged from the house, holding a
shotgun. The officers placed him under arrest. (R. 29).
The indictment
On January II, 1973, the Grand Jury returned an indictment charging appellant with assault upon a peace officer with intent to murder. On January 26, 1973, he filed a
motion to quash indictment, which the trial court denied.
(R. 4, 8).
The trial and appeal
On January 30, i973, the State introduced testimony of
Police Officers Yoker and Abalone. (R. 26, 33). The appellant was convicted by the jury and sentenced to life imprisonment. When the trial court denied his motion for new
trial, the appellant gave notice of appeal to the Texas Court
of Criminal Appeals. (R. 15, 17).
4
SUMMARY OF ARGUMENT
Appellant prosecutes his appeal on two issues. He challenges the validity of the indictment and the sufficiency of
the evidence.
I.
First, he objects because the language of the indictment
is vague and indefinite. He insists that he cannot determine
if he is charged with the commission of an offense under
article 341, article 1160, or article 1160a. However, it is
certain that the trial court properly denied appellant's motion to quash the indictment because it clearly and sufficiently charges the appellant with assault upon a peace
officer with intent to murder. Courts have applied the general rule that an indictment which charges a crime in statutory language is adequate to inform the accused of the
offense with which he is charged. There is no showing in
this case that the indictment is subject to an exception to
this rule because the indictment carefully alleges every essential element of the article 1160a offense : It informs appellant of the specific offense with which he is charged.
Second, appellant objects because the indictment does
not allege the particular duty performed by the officer at the
time of the incident. He contends that he needs to know the
exact duty the officer was performing in order to prepare
his defense. While it is axiomatic that appellant must learn
from the indictment the offense with which he is charged,
this basic right to know does not require that every minute
detail be set forth therein.
Where courts have created an exception to the usual rule
that pleading in statutory language suffices, it is where the
5
matter relates directly to the conduct of the accused . In this
case, Officer Abalone's particula r duty relates not to the
appellant's conduct, but to that of the officer. Neither is the
. particular duty the very basis of the offense charged. Thus
the indictment fulfills its basic purpose, which is to apprise
the appellant of the offense. It is not necessary to plead the
State's evidence.
Third, appellant objects because the indictment failed to
allege the offense, thus preventing him from knowing under
which statute he would, if convicted, be punished. However, .it is unnecessary to plead in the indictment the sta tutory limitations of the punishment. Where, as in the case at
bar, the indictment sufficiently . charges an offense under a
specific statute, the appellant is apprised of the punishment.
When he knows from the essential elements of the offense
alleged under which statute he is charged, he recognizes the
punishment therein .
II.
Appellant objects to the verdict and judgment rendered
because they are unsupported by evidence and contrary to
law. He claims that the evidence introduced at trial by the
State was insufficient to enable the jury to find him guilty.
The evidence, however, remained uncontroverted throughout the trial. The State introduced a mple evidence, primarily in the form of direct testimony from Officers Yoker and
Abalone, to show every element of the 1160a offense
charged. The jury was entitled to conclude that appellant
was guilty of the offense of assault upon a peace officer
with intent to murder. The .judgment corresponded to the
6
indictment and verdict: the judgment was also supported by
proof. Therefore, the judgment and verdict were clearly in
accord with the law and supported by the evidence at
trial.
ARGUMENT AND AUTHORITIES
I. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT CLEARLY AND SUFFICIENTLY CHARGES A VIOLATION OF ARTICLE
1160a.
The indictment alleges a violation of article 1160a, assault
upon a peace officer with intent to murder. TEX. PENAL
CODE ANN. article 1160a (Supp. 1972). Appellant moved
to quash the indictment because it failed to apprise him
whether he is charged with the commission of an offense
under article 341, article 1160, or article 1160a of the TEX.
PENAL CODE ANN. (Supp. 1972). (Appendix C). The
gravamen of the complaint is that the appellant cannot ascertain from the indictment the statute under which he is
charged . (R. 7). The indictment should be upheld because it
clearly and sufficiently charges a violation of article 116Oa.
assault upon a peace officer with intent to murder.
A. The indictment alleges each element of the article 1160a
offense.
An essential purpose of the indictment is to notify the
accused of the crime with which he is charged . Zewig v.
State. 74 Tex. Crim. 306, 171 S.W. 747 (1914). The right of
the accused to know the nature and cause of the charge
against him is guaranteed by the Constitution. TEX.
CONST. art. I, § 10. This means that each of the constituent
elements of the offense must be set forth in the indictment.
TEX. CODE CRIM . PROC. ANN. art. 21.03 (1966). (Ap-
7
pendix B.) The felony described
five essential elements:
In
article II60a contains
I. A person who assaults
2. A peace officer
3. With intent to murder
4. While said officer is in the performance of his
official duty
5. With knowledge that the person assaulted is a
peace officer. (Appendix A).
In the instant case, each of these elements is alleged in
the indictment. Omitting the formal portion of the Indictment, it reads as follows:
Fredrick Alfred Significant. .. did then and there unlawfully and voluntarily assault John Q. Abalone, a
peace officer who was then and there in the performance of his official duty, with the intent then and
there on the part of the defendant to murder said officer by shooting him with a gun when the defendant
then knew said officer was a peace officer, to-wit: a
police officer of the incorporated City of Fort Worth.
(R. 4).
The indictment alleges that appellant assaulted John Q.
Abalone , a peace officer in the performance of his official
duty at the time of the assault. It avers that appellant had
the intent to murder the officer. It also specified that appellant knew that Officer Abalone was a peace officer.
I n early cases, courts followed a strict interpretation
when viewing the sufficiency of an indictment. If the indictment contained the slightest flaw, the conviction was
likely to be reversed. But as the court in Gray v. State, 77
Tex. Crim. 221, 178 S.W. 337 (1915) observed, by the late
1800's the strict construction was abandoned by the legislature in favor of a more liberal approach.
8
Some courts, however, continued to apply the rule that in
an indictment nothing is to be supplied by intendment. An
example is the court in Northern v. State, 150 Tex. Crim.
511,203 S.W.2d 206 (1947). The indictment averred that the
defendant kicked and stomped the victim to death. The
court held that the indictment was insufficient; it did not
include the allegation that the kicking and stomping was
done with the defendant's "feet." Thus the conviction for
murder was overturned. Judge Stout, a critic of the court's
decision, pointed out that such holdings do not promote the
cause of justice. He expressed his disapproval as follows:
It is up to the lawyers and the members of the judiciary to meet the pressing needs and responsibilities of
our day, to make our system of justice more certain
and efficient, to bury in the deepest caverns the rattraps and pitfalls which have long since served no
other purpose than to defeat, delay and deny justice.
StOllt, Criminal Procedure Should Be Revised, 25
TEXAS L. REV. 613, 630 (1947).
The modern approach followed by most courts is in accord with Judge Stout's viewpoint. The trend in criminal
procedure is to avoid the ends of justice being submerged
in legal formalism by twisting language and logic in order to
read out of the indictment the intended meaning. Spelling
and punctuation errors are not considered reversible error
where the substantial rights of the defendant are not prejudiced. Snudgrass v. State. 147 Tex. Crim. 408, 181 S.W.2d
284 (1944). Wingate v. State, 487 S.W.2d 89 (Tex. Crim.
App. 1972).
In determining sufficiency of an indictment. courts look
not to . whether the indictment could be improved, but
9
whether it enables a person of "common understanding" to
know with what he is charged . Lydia v. State, 486 S.W.2d
791 (Tex Crim. App. 1972). Another standard used to de. cide the sufficiency of an indictment is the requirement that
the offense be set forth in "plain and intelligible words."
TEX. CODE CRIM. PROC. ANN. art. 21.02 (1966). (Appendix B).
Generally a charge in the language of the statute is sufficient in an indictment. Burney v. State, 171 Tex. Crim.
274.347 S.W.2d 723 (1961). The court in Williams v. State,
491 S.W.2d 142 (Tex . Crim. App. 1973). upheld an indictment which substantially followed the language of the
statute for assault with intent to murder. The indictment
was found to comply with article 21. 112, The indictment
need not employ the "exact" language of the statute under
which is is drawn. Townsend v. State. 121 Tex. Crim. 79.
51 S.W.2d 696 (1932). Maedgen v. State, 132 Tex. Crim.
397, 104 S.W.2d 518 (1937). Where the charge is awkwardly
worded the indictment will be upheld. Mesa v. State, 462
S.W.2d 600 (Tex. Crim. App. 1971). Where the indictment
is not quite grammatically correct, it will be sustained . Zapata v. State, No. 45892 (Tex . Crim. App .• April 25, 1973).
The present indictment enables a person of common understanding to know what is meant by the charge. as required by TEX. CODE CRIM. PROC. ANN. ART. 21.11
(1966). (Appendix B). It sets forth in "plain and intelligible
words" every element of the article 1160a offense. Thus it
charges in statutory language the offense of assault upon a
peace officer with intent to murder.
B. The indictment does not allege the elements of the ar-
\0
tide 341 offense.
The appellant complains that he cannot discern from the
indictment under which statute he is charged. (R. 7). He
claims that he cannot determine if he is cha rged under article 341. 1160 or 116Oa. Article 341. entitled "Accused Resisting Arrest," is divided into two distinct offenses, 341a
and 341b. The elements of these offenses are not charged in
the indictment.
Article 341a prohibits a person who is being arrested to
resist execution of arrest by one authorized to make the
arrest. In the instant case, nowhere in the indictment are
these elements alleged. There is no mention of an arrest.
There is no mention of an arrest warrant. There is no indication that Officer Abalone was one authorized to make
an arrest. Nor is there the slightest hint that the appellant
resisted, in any manner , any execution of arrest. In the
absence of any of the elements of the article 341 a offense,
it is certain that the indictment did not charge an offense
thereunder.
Article 341 b prohibits a person from using a firearm to
resist any lawful arrest, apprehension, or investigation by a
peace officer. Nowhere in the indictment is an allegation
that Officer Abalone was performing one of these specific
activities. In this regard the indictment alleges only that the
officer was "then and there in the performa nce of his official duty." (R. 4).
The language in some decisions, however, might be interpreted to suggest that the broad allegation of "official duty"
in the indictment suffices to charge an arrest, investigation
II
or apprehension. In Burney, the court stated that where an
indictment contained broader language than that of the statute, it was sufficient to charge the statutory elements. Admittedly, the lanlluase in the indictment. that Abalone was
performing an official duty, is broader than the language of
the article 341 b offense. However, viewed in its entirety,
the language in the indictment does not charge the elements
of article 341 b. To hold that the indictment charged a violation of article 341 b would require the court to reject and
render meaningless the allegation of assault with intent to
murder Officer Abalone.
The very gist of the article 341b offense is "resistance,"
a term which is absent from the indictment in this case. The
language used in an indictment is to be interpreted according to its ordinary meaning, unless specifically defined in a
different manner within the provisions of the Texas Penal
Code. Perez v. State, 114 Tex. Crim. 473, 22 S.W.2d 309
(1929). The "plain meaning" of the term "assault with intent to murder" does not denote the specific activities of
resisting arrest, apprehension, or investigation.
From some of the words used in the indictment, however, the appellant could find some resemblance to the language of article 341 b. First, the statute mentions use of a
"firearm," while the indictment includes "shooting with a
gun." (R. 4). The statute refers to a "peace officer" while
the indictment goes further to charge an assualt upon that
peace officer with intent to murder. (R. 4).
The similarity disappears, however, when the indictment
is viewed in context. First. the indictment goes farther than
12
merely charging a shooting with a gun. The use of the gun
is part of the offense of assault upon a police officer with
intent to murder. Second, the indictment viewed in its entirety reveals that the term "peace officer" is intended to
show who was assaulted by the appellant. The phrase "then
and there in the performance of his official duty" does not
mean specific duties limited to arresting, apprehending or
investigating.
Because all of the elements of article 341 b are not set out
in the indictment, a violation of that offense is not charged
therein. The indictment contains allegations which are
broader than an article 341 b charge would warrant. Further,
the indictment contains allegations which are of a more serious nature than an article 341b charge would demand.
Rather it clearly charges a violation of article 1160a, assault
upon a police officer with intent to murder.
Only where an indictment completely alleges in a single
count two or more separate offenses with different punishment is the indictment considered duplicitous. Olde v.
State, 139 Tex. Crim. 288, 139 S.W.2d 595 (1940). In Todd
v. State, 89 Tex. Crim. 99, 229 S .W. 515 , 516 (1921), the
conviction was reversed because the indictment completely
alleged in a single count numerous felonies. It charged as
follows: "W. R. Todd did receive, transport, export, and
deliver and solicit and take orders for and did furnish spiritous, vinous and intoxicating liquors. " The indictment in the
present case is not duplicitous because the only offense
completely alleged is article 1160a.
,
C. The indictment charges an offense greater than the article 1160 offense.
13
The appellant contends that he cannot understand from
the indictment under which statute he is charged. He claims
that he cannot determine whether he is charged under article 1160 or article 1160a. Article 1160 is the general assault
with intent to murder statute. Although the elements of this
offense are contained in the indictment, the indictment goes
further and charges a n offense of greater magnitude. The
appellant is charged not with general assault but with assault upon a peace officer.
Article 1160, which prohibits a person from assaulting
another with intent to murder, contains two provisions. One
provides for the offense if committed "with malice," while
the other provides for the offense if committed "without
malice." Initially, when the article contained but a single
offense, the element of malice was not required to be alleged. Friday v. State, 117 Tex. Crim. 37, 36 S .W.2d 1036
(1931). Yet under the amended statute, it is necessary to
aver malice only when the greater of the two penalties is
sought. Welcome v. State, 438 S.W.2d 99 (Tex. Crim. App .
1969).
Where the greater penalty is sought, the element of "malice" is required. In Wingate v. State, 487 S.W.2d 89 (Tex.
Crim. App. 1972), the court upheld an indictment charging
in part that the accused assaulted another with malice aforetliought with the intent to murder. The distinction between the charge in that case and the charge in the present
case is that here there is no allegation of malice. In article
116Oa, the offense under which the appel!ant is indicted, no
pleading of malice is required. Flores v. State, 487 S.W."2d
14
122 (Tex. Crim. App. 1972). Because there is no mention of
malice in the indictment, it clearly does not provide for the
charge of assault with intent to murder "with malice."
Additionally, the indictment clearly does not charge assault with intent to murder "without malice." It is not concerned with the article 1160 offense, general assault with
intent to murder , but rather with the offense under 1160a.
The indictment substantially follows the language of article
1160a, in compliance with TEX. CODE CRIM. PROC.
ANN. art. 21.17 (1 966). (Appendix B). The indictment alleges that appellant assaulted a person he knew to be a
peace officer, while that officer was performing his official
duty-thu~ indicating that a graver offense is charged-the
offense of article 1160a: assault upon a peace officer with
intent to murder.
The indictment charges an article 1160a offense, which is
a related yet distinct offense from the article 1160 offense.
Flores. To charge the greater offense, it i~ necessary to
include the elements of the lesser offense. The court in
Todd explained that where, by necessity, one offense includes elements of the other, the indictment is not considered duplicitous. The indictment in the principal case is not
rendered duplicitous because it alleges the elements of article 1160 while it charges the article 1160a offense.
D.The State was entitled to charge the graver offense of
article lI60a.
In the case at bar, the State could have charged appellant
with an article 341 b offense of resisting arrest. The State
could also have charged appellant with an article 1160 of-
15
fense of general assault with intent to murder. But the State
did not charge either of these offenses, because the facts
demonstrate that the offense was of a graver nature. Thus
the State appropriately charged assault upon a peace officer
with intent to murder.
It is permissible for the State to carve out of the transaction the most serious offense committed by the appellant. In
Armstrong v. State, 106 Tex. Crim. 496, 293 S.W. 817
(1927), the defendant claimed that he should have been
charged with malicious mischief instead of theft. The court
upheld the conviction because the facts showed that the
graver offense of theft was properly charged. According to
the court, the State had the right to choose with which
offense the defendant would be charged.
In view of the serious nature of the offense involving an
assault upon a peace officer with intent to murder, as expressed in Ex Parte Simon. 469 S.W.2d 804 (Tex. Crim.
App. 1971). the conviction should not be overturned. The
appellant was sufficiently charged in the indictment with a
violation of article 116Oa. Thus the trial court correctly denied the motion to quash indictment.
II. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT SUFFICIENTLY ALLEGES
THAT OFFICER ABALONE WAS PERFORMING HIS
OFFICIAL DUTY AT THE TIME OF THE OFFENSE.
The indictment alleged that Officer Abalone was "then
and there in the performance of his official duty ." Appellant moved to quash the indictment bec:;ause it failed to
allege the nature of the officer's duty at the time of the
offense. (R. 4, 6). The trial court rejected the contention
16
and denied the appellant 's motion to quash the indictment:
Since the indictment adequately charged the performance of
the policeman's duty, it enabled the appellant to prepare his
defense .
A. It is unnecessary to allege the particular duty the officer
is performing at the time of the offense.
The defendant charged with aggravated assault in Nestor
v. State, 121 Tex. Crim. 22,51 S.W.2d 399 (1932), claimed
that the specific duty the officer was performing at the time
of the incident should have been set forth in the State's
pleading. The information alleged that he was "then and
there in the discharge of his duties as a Ranger." The court
held it is unnecessary to allege the partiCular duty the officer was performing at the time of the offense.
That the holding in the Nestor case has retained its validity is exemplified in the recent case of Horn v. State, 463
S.W.2d 14 (Tex. Crim. App. 1971). When the information
charging aggravated assault contained no mention of the
particular duty the officer was performing at 'the time of the
offense, the defendant tried to claim the information was
insufficient. He contended that he was deprived of notice
needed to enable him to answer and to defend. The court,
however, rejected .the argument and affirmed the conviction.
It is worthwhile to compare and contrast the language of
three statutes. The language of article II60a parallels that
of article 1147 (I) of the Texas Penal Code. Article II60a
provides that the offense is complete if ' it is committed
while the officer is in the performance of his official duty
17
:tnd the person assaulting him knows he is a peace officer.
(Appendix A). Article 1147 (I) provides that the offense
becomes aggravated if it is committed "upon an officer in
the lawful discharge of the duties of his office" when it is
known or declared to the offender that the person assaulted
is an officer discharging an official duty. While under both
statutes it is a requirement for the officer to be performing
an official duty at the time of the assault, neither statute is
limited to certain, specific duties.
The language of article 341 b is easily contrasted with article 1160 and article 1147 (I). Article 341b is specifically
limited in its scope because the language provides application only in three situations: when the officer seeks to
investigate, to apprehend, or to arrest. It is clear that the
offense would not be complete under article 341 b unless the
officer were performing one of the three duties cited in the
statute.
Because article 341b is so narrowly drawn. it is clear that
an indictment under that statute would have to allege one of
the three above-named duties. On the other hand, because
article 1160a and article 1147 (I) a're not so limited, it is
unnecessary that an indictment under these statutes allege
the particular duty the officer was performing at the time of
the offense. As the court in Horn v. State, 463 S.W.2d 14
(Tex. Crim. App. 1971), held, the defendant is not thereby
prejudiced in preparing his defense. Instead he is actually
put on notice that the State will contend that the officer
assaulted was performing an official duty at the time of the
offense.
The legislature chose to extend the protection of article
18
1160a to peace officers. However, the protection is not extended unless the officer is actually acting in his "official
capacity." It clearly stops in a situation wherein the officer
acts only in his "individual capacity." For example, in
Simms v. State, 167 Tex. Crim. 315,319 S.W.2d 717 (1958),
when an officer who was neither on duty nor in uniform
became aware of a disturbance, it became his "official
duty" as an officer to preserve the peace. The court upheld
the conviction for aggravated assault against the contention
that the officer was acting ouiside the scope of his official
duty. Similarly, in Thompson v. State, 426 S.W.2d 242
(Tex. Crim. App. 1%8), an officer was held to be within the
scope of his "official duty" when he responded to a disturbance at an apartment.
In contrast to the position taken by the courts in Simms
and Thompson, where the officer was not actually performing an official duty, the courts have reversed the convictions. In Crow v. State, 152 Tex. Crim. 586,216 S.W.2d
201 (1948), the conviction was reversed where an officer
ordered the accused to go home. The court held that this
was outside the scope of the policeman's lawful duty.
Where a constable was involved in a personal altercation,
the court in Jeanes v. State, 60 Tex. Crim. 440, 132 S.W.
352 (19\0), reversed the conviction for aggravated assault.
These deci~ions reflect the nature of the protection which
the legislature intended to provide. Unless an officer is actually acting in his "official capacity" the protection is not
extended.
B. It is unnecessary to plead the State's evidence in the
indictment.
19
The sufficiency of an indictment is measured by whether
the defendant has notice of the offense with which he is
charged. Additionally, the indictment must furnish information from which he can prepare his defense. The standard
does not, however, go so far as to require that the State
plead its evidence in the indictment. McKenzie v. State, 450
S.W.2d 341 (Tex. Crim. App. 1969). The court upheld the
indictment for murder because it sufficiently apprised him
both of the conduct giving rise to the offense and the offense itself.
In the case at bar, Officer Abalone's particular duty relates not to the conduct of appellant, but to that of the
officer. To go so far as to allege a particular duty contributes nothing to the appellant's knowledge of his own conduct for he is already informed thereof. He has notice both
of the conduct and the offense with which he is charged.
The indictment informs appellant that he assaulted by
shooting with a gun a person he knew to be a policeman
with intent to murder. (R. 4) .
The Nestor case held that it is unnecessary to allege in
the indictment the officer's particular duty. In accord with
. the holding that such particularity is not required is Hadley
v. State, 151 Tex . .Crim. 27, 205 S.W.2d 374 (1947). The
court found it unnecessary where an indictment was drawn
under a statute prohibiting driving while intoxicated to allege the particular street where the offense occurred. Similarly, the court in Bedwell v. State, 142 Tex. Crim. 599, 155
S.W.2d 930 (1941), explained why it is unnecessary to allege the particular street. If the defendant drove his car
20
while intoxicated on any street whatsoever, he violated the
law. The court further observed that the State is not required to plead its evidence in the indictment becuuse it is
sufficient to lid vise the accused of that with which he is
charged. Applying this rule to the case at bar, it is unnecessary to allege the officer's particular duty in the indictment.
When the appellant assaulted Officer Abalone, regardless of
what specific duty the officer was then performing, appel-.
lant violated the law.
The reasoning in the Bedwell case was adopted in Peler v.
Siale, 148 Tex . Crim. 475, 188 S.W.2d 178 (1945). where
the court held it is unnecessary to name the particular street
where th" defendant disturbed the peace. In Greeson v.
Siale, 408 S.W .2d 515 (Tex. Crim. App. 1966), it was unnecessary to allege a description of the particular house
burglarized. Likewise. in Cousins v. Siale, 154 Tex. Crim.
5, 224 S.W.2d 260 (1949). regardless of the amount of
money stolen. the offense of theft from the person was
complete. Thus the indictment need not charge the exact
amount taken.
The indictment in the present case alleges more than is
required to enable the appellant to prepare his defense. For
instance. in Palomo v. State, 157 Tex. Crim. 443. 249
S.W.2d 208 (1952). the court held it was unnecessary to
allege the particular kind of officer assaulted. Yet appellant
had notice from the present indictment that Abalone was
employed as a peace officer for the incorporated city of
Fort Worth. (R. 4).
Moreover. in Williams v. Stale, 491 S.W.2d 142 (Tex.
21
Crim. App. 1973), the court held it was unnecessary to
allege the particular means used to commit the assault. Yet
appellant had notice from the present indictment that the
assault was committed by shooting with a gun. (R. 4). In
the Williams case, the charge expressed in statutory language was held sufficient to enable the accused to prepare
his defense. In short, an indictment need not allege matters
of evidence.
Although the State is generally not required to plead its
evidence in the indictment there are exceptions wherein
greater specificity is needed. It is a rule of long standing
that when a written instrument forms the basis of an offense, it should be set out in the indictment. Wilson v.
State, 80 Tex. Crim. 662, 193 S.W. 669 (1917). In a theft
case, the item stolen must be specified. Leos v. State, 155
Tex. Crim. 487, 236 S.W.2d 817 (1951). In a possession of
narcotics case, the drug must be specified. Baker v. State,
123 Tex . Crim. 209, 58 S.W.2d 534 (1933).
The underlying rationale of these holdings is that where a
matter is the basis of the offense; it must be alleged. The
rationale does not apply to the contention urged by appellant. Since the basis of the offense is assault with intent to
murder, to allege the victim's specific duty is unnecessary.
It is axiomatic that the defendant is entitled to know the
particular act he is accused of committing. In Terry v.
State, 471 S.W.2d 848 (Tex. Crim. App. 1971), the accused
was charged with placing a counterfeit tax stamp on packages of cigarettes. Where the indictment' contained no description of the stamp, the court found it vague and
22
indefinite. The conviction was reversed because there was
nothing in the indictment which would indicate the act the
defendant commiued.
The primary concern in Terry was to preserve the defendant's right to know the act with which he was charged.
The material distinction between the defendant's position in
Terry and that urged by appellant in this case, is that the
allegation in the indictment there did not inform the defendant of the act he commiued. The present indictment does
inform appellant of the act he commiued, thus enabling him
to prepare his defense.
III. THE TRIAL COURT CORRECTLY UPHELD THE INDICTMENT BECAUSE IT ALLEGED SUFFICIENT
FACTS TO CHARGE A VIOLATION OF ARTICLE
1160a AND TO PROVIDE NOTICE OF THE PUNISHMENT.
In his motion for a new trial, the appellant contended that
the trial court erred in its failure to quash the indictment.
He claimed that the indictment failed to allege with sufficient particularity facts which would reveal the statute
which he violated and under which he would be punished.
The trial court correctly denied his motion for a new trial.
The indictment avers sufficient facts to charge appellant
with a violation of article 1160a and to provide notice of the
punishment.
Everything which the State intends to prove must be set
out in the indictment. TEX . CODE CRIM . PROC. ANN.
art. 21.03 (1%6). It is necessary that the accused learn from
the face of the indictment the offense with which he is
charged. In the case at bar, each element of article 1160a
23
was alleged in the indictment so that appellant had notice of
the charge. Because he had notice of the charge. he also
had notice of the punishment. The court in Bashara v.
State. 84 Tex. Crim. 263. 206 S.W. 359 (1918) said that the
punishment itself need not be set out in the indictment.
That the appellant had notice of the article 1160a charge
is undeniable for the very words of the statute are parroted
in the indictment. The words used describe with certainty
the offense of article 1160a. The facts alleged contribute to
this certainty. thus apprising appellant of the offense. The
court in Lopez v. State. No. 46052 (Tex. Crim . App .• May
16. 1973). commented that where the words of the statute
are descriptive of the offense. a charge in .the statutory
language is sufficient.
Article II60a provides that a person who commits an assault upon a peace officer with intent to murder is guilty of
a felony. The indictment contains additional allegations
which serve to identify the transaction. It avers the name of
the victim: John Q. Abalone. a Fort Worth policeman. It
alleges the means of committing an assault: shooting with a
gun. It mentions the date of the offense: January 6th. 1973.
(R. 4).
Although minuteness of detail is not required in an indictment. Nogueira v. State. 125 Tex. Crim. 631. 69 S.W.2d
101 (1934). sufficient facts are needed to enable the appellant
to plead his conviction in bar of any subsequent prosecution
for the same offense. TEX. CODE CRIM. PROC. ANN. art.
21.04 (1966). (Appendix B). The court ~tated in Burck v.
State. 132 Tex. Crim. 628. 106 S.W.2d 7ffl (1937). where
24
each of the constituent elements of the offense are averred,
the defendant is apprised of the charge, and is able to plead
the judgment in bar of a subsequent prosecution, the indictment is sufficient. The State cannot seek a second conviction based on the same transaction. Duckett v. State, 454
S.W.2d 755, (Tex. Crim. App. 1970). Where the defendant
needs to prevent a subsequent prosecution for the same
offense, he can go beyond the face of the indictment to
prove the identity of the transaction. Poteet v. State, 138
Tex . Crim. 9, 133 S .W.2d 581, (1939).
Because the indictment in the principal case served notice
of the offense charged, the trial court correctly upheld it.
The indictment should be upheld because the allegation of
statutory elements and specific facts, in the language of
article 1160a, notify appellant of the charge. It thus apprised him of the punishment contained therein.
Aside from the contention of appellant, there is nothing
in the record to suggest any confusion about the punishment. The jury found appellant guilty of assault upon a
peace officer with intent to murder. The jury assessed punishment at life imprisonment. Since the punishment was
within the limits provided under article 1160a, the conviction should not be overturned.
IV.THE TRIAL COURT ADJUDGED APPELLANT
GUILTY OF ARTICLE 1160a, IN ACCORD WITH THE
LAW AND SUPPORTED BY THE EVIDENCE.
The trial court overruled appellant's motion for new trial
and upheld the judgment convicting him of- assault upon a
peace officer with intent to murder. (R. 14,' 15). The appellant contends that the verdict is unsupported by the evi-
25
dence and the judgment is contrary to the law. A review of
the evidence presented, the verdict rendered , and the judgment entered, reveals that a reversal i~ unwarranted.
A. The verdict is supported by the evidence.
In rendering the verdict, the jury's function is to evaluate
the facts and to judge the witnesses' credibility, in order to
weigh the testimony. Hill v. Slate, 456 S.W .2d 699 (Tex .
Crim. App. 1970). The jury is entitled to base its verdict
solely on the testimony of the eyewitness. Aguilar v. Stale,
468 S.W .2d 75 (Tex. Crim. App. 1971). Moreover, it can base
its verdict solely on the testimony which is offered by the
State. Jones v. State,472 S.W . 515 (Tex. Crim. App . 1971).
The court in Hall v. State, 158 Tex. Crim. 243, 254
S.W.2d 523 (1953), expressed the rule that it is not the
prerogative of the appellant court to interfere with jury
findings on questions of fact if there is evidence authorizing
the verdict. The court is limited in its power to set aside the
verdict. This power, discussed by Ihe court in McKenzie v.
Siale. 116 Tex. Crim. 395. II S.W.2d 172 (1928). is restricted in determining both the sufficiency of evidence and
material errors of law deemed prejudicial to the accused.
The narrow role of the reviewing court is described in Hill
at 700:
The court is confined to whether, vie'wing evidence in
the light most favorable to the State, there is substantial evidence. either directly or circumstantially.
which together with reasonable inferences, sustains the
verdict.
The court in Ware v. Stale. 475 S.W.2d 282 (Tex. Crim.
App. 1971), found that the court's role is to ascertain only
whether there is any evidence that, if believed, shows the
guilt of the accused. Expressed similarly in Brooks v. State.
26
139 Tex. Crim. 193, 139 S.W.2d 805 (1940), the rule is that
the court is not justified in setting aside the verdict when
there is sufficient evidence from which a jury could reasonably draw the conclusion of appellant's guilt. The reviewing
court is to view the evidence in the light most favorable to
the jury verdict. Jennings v. State, 367 S.W.2d 670 (Tex.
Crim. App. 1963). Pogue v. State, 474 S.W.2d 492 (Tex.
Crim. App. 1971).
Article 1160a provides that a person who assaults with
intent to murder a peace officer, while in the performance
of his official duty, with knowledge that the person is a
peace officer, is guilty of a felony. By an uncontroverted incourt identification, the State initially established at trial
that the appellant was the person who assaulted Officer
Abalone. (R. 29, 37). In the case at bar, viewing the evidence in the light most favorable to the verdict , it is clear
that every element of the 1160a offense charged IS supported by sufficient evidence.
Assault:
TEXAS PENAL CODE ANN. art. 1138 (1961), defines
an assault as ... . . any threatening gesture showing in itself, or by words accompanying it, an immediate intention,
coupled with an ability to commit a battery . .. " the appellant threw open the screen door and pointed a shotgun at
the officer. This threatening gesture reHects appellant's clear
intention. In Howard v. State, 116 Tex. Crim. 8, 32 S.W.2d
858 (1930), the court wrote that the use of a dangerous
weapon in a threatening manner, with intent to alarm, constitutes an assault. The jury was clearly authorized in find:
27
ing that appellant committed an assault on Officer Abalone.
With intent to murder:
The evidence introduced at trial in the instant case supports a finding of an assault with intent to murder on two
grounds. First, intent is established from the appellant's
conduct and the surrounding circumstances. Second, intent
is established from the use of a deadly weapon per se.
The first basis for finding intent to murder is appellant's
conduct and the surrounding circumstances at the time of
the assault. The court in Hall v. State, 418 S.W.2d 810
(Tex. Crim. App. 1%7), wrote that where intent to murder
is to be determined from conduct and surrounding circumstances, it is a question of fact for the jury. The court
explained that the jury may infer the intent from any facts
in evidence which, to the minds of the jury, prove the
existence of the intent to kill. Further, in Daugherty v.
State. 153 Tex. Crim. 8, 216 S.W.2d 222, 223 (1949), the
court commented :
When the evidence, though meager, is such that from
it the jury could logically draw the conclusion that the
accused committed an assault with intent to murder,
this court would not be authorized to hold the evidence
insufficient.
The appellant in the present case not only aimed the shotgun at Abalone but fired it as well, inflicting a serious injury. (R. 37, 38).
Although the facts in this case do show that the policeman was wounded, an actual injury need not have resulted
for the jury to determine the existence of intent to murder.
28
In Watson v. State, 466 S.W.2d 783 (Tex. Crim. App.
1971), an injury was prevented when the accused's mother
grabbed away the gun. In Streets v. State, 148 Tex. Crim.
517, 188 S.W.2d 582 (1945), an injury was avoided when
defendant's gun misfired. In both cases, nevertheless, the
jury found intent to murder. Certainly in the case at bar,
where Abalone was actually injured the jury was justified in
finding the intent to murder.
In Walker v. State, 150 Tex. Crim. 421, 201 S.W.2d 823
(1947), the court looked not only to the defendant's conduct, but also to the words he used at the time of attack. In
the instant case, the words used support the jury's finding
of the intent to kill. The record shows that Officer Abalone
was told to get off the property. The person behind the
screen door declared, "Go mind your own God damned
business. We don't need no policemen here." He then
threatened, "Get out of here or I'll kill you." (R. 36).
The record does not directly show that the person making
the threats was the appellant. The record does contain sufficient evidence, however, to warrant the jury's finding that
he was the person who threatened Abalone's life. After the
threats were made, appellant immediately pushed open the
screen door and shot Officer Abalone. (R . 36-37). The sequence of events clearly enabled the jury to find that appellant was tht: one who made the threats. Furthermore, the
notion that another made the threats is not supported by
any evidence. Nowhere in the record is there any showing
that there was someone other than appellant in the house at
the time. Therefore, appellant's conduct and the surrounding circumstances justified the jury's finding that the appel-
29
lant intended to murder Officer Abalone.
The second basis for finding intent to murder is presumed
by law from appellant's use of a deadly weapon. As early
as 1897, the court in Franklin v. Siale, 37 Tex. Crim. 113,
38 S. W. 1016, found that in deciding intent, the jury should
look to the character of the weapon. The court wrote, "If
the weapon was a deadly weapon, and likely to produce
greatly bodily harm, the jury may infer, from the use of
such weapon, the intent to kill." It is well established that a
shotgun is a deadly weapon per se. Siallings v. Siale, 476
S. W.2d 679 (Tex. Crim. App. 1972). In the case at bar, the
appellant used a shotgun. (R. 37). From this the jury could
find the intent to murder.
The record demonstrates that the appellant fired a shotgun at close range, injuring Officer Abalone. (R. 36-37).
Had appellant not wounded the officer, the pointing and
firing of the deadly weapon in itself would have sufficed to
show the element of intent to murder. Firing alone was
enough to show the element of intent to kill in ESlrada v.
Siale, 479 S.W.2d 316 (Tex. Crim. App. 1972). There, the
court sustained the conviction against the accused for firing
a weapon at two policemen. Similar evidence enabled the
jury to find intent . to murder in Klechka v. Siale, 475
S.W.2d 257 (Tex. Crim. App. 1972).
Appellant's intent to murder is clear. As the court observed in Tapley v. Stale, 158 Tex. Crim. 495, 256 S .W.2d
583, 586 (1953):
To say that even though an accused . pointed a deadly
weapon directly at the injured party and fired the
30
same, but that in doing so he did not intend to kill,
would be bordering on an absurdity. [emphasis added).
The language is cited with approval in two recent cases:
Redd v. State, 452 S.W.2d 919 (Tex. Crim. App. 1%9) , and
Estrada v. State 479 S.W.2d 316 (Tex. Crim. App. 1972).
Because the record contains no evidence to rebut the presumption of intent to murder which arises by law from the
use of a deadly weapon, the jury verdict is amply supported
by the evidence.
A peace officer:
A poli ceman of an incorporated city is a peace officer.
TEX. CODE CRIM . PROC. ANN., art. 2.12 (1966) (Appendix B). Officer Abalone testified that he was a Fort Worth
police officer at the time of the incident. (R. 34). Moreover,
the parties also stipulated that Fort Worth is an incorporated city (R. 34). Officer Abalone's status as a peace officer at the time of the offense is uncontroverted.
While in the performance of his official duty.
Il is the duty of every peace officer to preserve the peace
within his jurisdiction. TEX. CODE CRIM . PROC. ANN.,
art. 2.13 (1966) (Appendix B). The duty extends beyond the
police officer's regularly scheduled working hours. In
Simms v.State, 167 Tex. Crim. 315,319 S.W.2d 717 (1958),
a peace officer who was neither on duty nor in uniform
attempted to stop a fight. The court found that he was
. nonetheless performing his official duty. In the case at bar,
Officer Abalone was on duty, working the second shift
which was from 3:00 p.m. to 11:00 p.m.- (R. 34). He responded to a radio call directing him to a disturbance at
31
2521 Vera Cruz Street. (R . 34). Upon arrival he verified the
address, parked his patrol car, and walked to the house,
whereupon he was assaulted. (R. 35-37). Since the officer in
the case at bar was on duty, responding to a police radio
call and attempting to preserve the peace, he was clearly
performing his official duty.
With know/edge that he is a peace officer.
Where there is evidence that a peace officer identified
himself to a person who committed the assault, it is sufficient to support a jury finding of knowledge. When an
officer verbally identifies himself as a police officer and
shows his identification card the evidence is sufficient to
show knowledge . Green v. State, 171 Tex. Crim. 401, 350
S.W.2d 560 (1%1). Hughes v. State, 439 S.W.2d 352 (Tex.
Crim. App. 1%9). Even where no identification card is
shown, a policeman's verbal identification is still sufficient.
Simms v. State, 167 Tex. Crim. 315, 319 S.W.2d 717 (1958).
Hackett v. State, 172 Tex. Crim. 414, 357 S.W.2d 391
(1962).
Uncontroverted testimony in the present case established
in the minds of the jury that appellant knew that Officer
Abalone was a peace officer at the time of the offense. The
officer testified that · he specifically told appellant that he
was a policeman.
[Officer Abalone on direct examination (R. 36)]
"Q. What did you do?
A. I told him I was a police officer and I was looking for
the person who called the police from that house."
The officer further testified that the appellant actually ac-
32
knowledged that Abalone was a policeman.
"Q. What did he say?
A. He said, 'Go mind your own God damned business.
We don't need no policeman here.' ..
The trial record shows that the policeman testified he was
on duty in uniform with a badge on his cap and coat when
he was assaulted . Under the TEX. PENAL CODE, PROPOSED REVISION, sec. 22.03 (Oct. 1972), the wearing of
a distinctive uniform gives rise to a presumption that the
actor knew that the person assaulted was a peace officer.
Although the proposed code has not yet been adopted, it
indicates the weight that should be given to the wearing of
a police uniform. The police uniform serves as an additional
manner in which an officer identifies himself.
Because the State pleaded the means of assault in the
indictment, .... . by shooting him with a gun . . . " (R. 4),
it was incumbent upon the State to prove the offense as
charged. The uncontradicted testimony of Officer Abalone
that appellant shot him with a shotgun supports that allegation. The State, therefore, introduced sufficient evidence to
enable the jury to find appellant guilty of the offense as
charged.
B. The verdict and judgment are according to the law.
The validity of a conviction is measured by three criteria,
as set forth in Swilley v. State, 114 Tex. Crim. 228, 25
S.W.2d 1098 (1929). The judgment must correspond to the
indictment and the verdict; the judgment must also be supported by proof. These requirements are met in the present
case.
33
The judgment is: " .. . guilty of assault of police officer
with intent to murder as charged in the indictment." (R.
14). Because appellant knew the crime charged and was
tried for that crime. the judgment is in accord with the
indictment and verdict. The judgment is supported by
proof. Testimony given by Officers Yoker and Abalone was
uncontroverted . Viewing the evidence. "in the light most
favorable to the State ." Jennings. shows that the judgment
is supported by proof.
The legislature provided the article 1160a offense punishment at imprisonment from two years to life. When punishment is within the statutory limits of the offense charged. it
is not excessive. Haywood v. State. 482 S . W .2d 855 (Tex.
Crim. App. 1972). Punishment of fifteen years imprisonment under article 1160a was found to be within the statutory limitations set by the legislature in Stallings v. State.
476 S.W.2d 679 (Tex. Crim. App. 1972) . The propriety of
punishment for conviction of a felony. which is confined to
the legislature's "exclusive domain ." rests solely with the
jury. Sasser v. State. 131 Tex. Crim. 347. 98 S.W.2d 211
(1936). The court explained in Manning v. State. 162 Tex.
Crim. 329. 284 S.W.2d 903 (1955), when the punishment
assessed is within that prescribed by statute, it is "beyond
the province of this court to pass upon the question."
Because the judgment corresponds to the indictment and
verdict . and the judgment is supported by proof, the jury
was entitled to find appellant guilty and to assess punishment at life.
34
CONCLUSION
Wherefore, premises considered, appellee prays that this
honorable court affirm the decision of the District Court.
Respectfully submitted ,
Wynette J. Hewett
Wynetlc J. Hewell
Judith J . Larson
lutlith J. Lurson
Jerry K. Sawyer
June 16, 1973
Jerry K. Sawyer
Attorneys for Appellee
35
APPENDICES
Page
APPENDIX A
TEX . PENAL CODE ANN . art. 341 .. .... .......... .. .... . A-l
TEX. PENAL CODE ANN. art. 116O .... ........ .... .. .... A-l
TEX. PENAL CODE ANN. art . 1160a ........ ............ A-l
APPENDIX B
TEX. CODE CRIM. PROC. ANN. art. 2.12.. ........ .. .. 8-1
TEX. CODE CRIM . PROC. ANN . art. 2. 13.. .... .. .. .... 8-1
TEX. CODE CRIM . PROC. ANN . art. 3.01 .... .. ...... .. B-2
TEX. CODE CRIM . PROC. ANN. art. 21.03 .. .. ...... .. B-2
TEX. CODE CRIM. PROC. ANN . art. 21.04 .. .. ...... .. B-2
TEX . CODE CRIM. PROC. ANN . art. 21.11 .. .... .. .. .. B-2
TEX. CODE CRIM . PROC. ANN . art. 21.17 .. .... .... .. B-2
APPENDIX C
TEX. PENAL CODE ANN. Comparison of
arts. 34Ib. 1160a and 1160 .. .......... ................ .. .... .. C- I
A-I
APPENDIX A
TEXAS PENAL CODE ANNOTATED
Art. 341. Accused resisting arrest
(a) If the party against whom a legal warrant of a rrest is
directed in any criminal case, resists its execution when
allempted by any person legally authorized to execute the
same, he shall be fined not exceeding Five Hundred Dollars.
(b) A person who uses or exhibits a firearm in resisting
any lawful arrest, apprehension, or investigation by a peace
officer is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than
two nor more than ten years . If the resistance is made in
such a manner that the person is guilty of assault to commit
murder, he shall receive the highest penalty affixed by law
for the commission of such offense in ordinary cases.
Art. 1160, Assault with intent to murder
Section I. If any person shall assault another with intent
to murder. he shall be confined in the penitentiary for not
less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed
without malice, the penalty assessed shall be not less than
one nor more than three (3) years confinement in the penitentiary; and provided further that in cases where the jury
finds such assault was committed without mal ice but was
made with a Bowie knife or dagger as those terms are defined by law, or with any kind or type of a knife, or in
disguise , or by laying in wait, or by shooting into a private
residence, the penalty shall be doubled .
Art. 116Oa. Assault upon peace officer with intent to murder
Section I. In this Act, "peace officer" means any person
defined as a peace officer by Article 2. 12, Code of Criminal
Procedure, 1%5.
Section 2. A person who assaults a peace officer with
A-2
intent to murder while said officer is in performance of his
official duty , knowing that the person assaulted is a peace
officer, is guilty of a felony and upon conviction is punishable
by imprisonment in the penitentiary for life or for any term of
years not less than two.
B-1
APPENDIX B
TEXAS CODE OF CRIMINAL PROCEDURE
Art. l.ll Who are peace officers
The following are peace officers:
(I) sheriffs and their deputies;
(2) constables and deputy constables:
(3) marshals or police officers of an incorporated
city , town, or village;
(4) rangers and officers commissioner [sic] by the
Public Safety Commission and the Director of the Department of Public Safety;
(5) investigators of the district attorneys', criminal
district attorneys', and county attorneys' offices;
(6) law enforcement agents of the Alcoholic Beverage Commission;
(7) each member of an arson investigating unit of a
city, county or the state;
(8) any private person specially appointed to execute
criminal process;
(9) officers commissioned by the governing board of
any state institution of higher education, public junior
college or the Texas State Technical Institute;
(10) officers commissioned by the Board of Control ;
and
(II) game management officers commissioned by the
Parks and Wildlife Commission.
Art. 2.13. Duties and powers
It is the duty of every peace officer to preserve the peace
within his jurisdiction. To effect this purpose, he shall use
all lawful means. He shall in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all
lawful process issued to him by any magistrate or court. He
shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to
believe there has been a violation of the penal law. He shall
8-2
arrest ·offenders without warrant in every case where he is
authorized by law, in order that they may be taken before
the proper magistrate or court and be tried. Acts 1965, 59th
Leg., vol. 2, p. 317, ch. 722.
Art. 3.01. Words and phrases
All words, phrases and terms used in this Code are to be
taken and understood in their usual acceptation in common
language, except where specially defined; and, unless herein
specially excepted have the meaning which is given to them
in the Penal Code.
Art. 21.03. What should be stated
Everything should be stated in ' an indictment which is
necessary to be proved.
Art. 21.04. The certainty required
The certainty required in an . indictment is such as will
enable the accused to plead the judgment that may be given
upon it in bar of any prosecution for the same offense.
Art. 21. Il. Certainty; what sufficient
An indictment shall be deemed sufficient which charges
the commission of the offense in ordinary and concise language in such a manner as to enable a person of common
understanding to know what is meant, and with that degree
of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the
court, on conviction to pronounce the proper judgment ; and
in no case are the word s "force and arms" or.' 'contrary to
the form of the statute" necessary.
Art. 21.17. Following statutory words
Words used in a statute to define an offense need not be
strictly pursued in the indictment; it is sufficient to use
other words conveying the same meaning, or which include
the sense of the statutory words .
APPENDIX C
Comparison of TEX. PENAL CODE ANN. arts. 341b, 116Oa, 1160
Elements
341b
A person who uses or
exhibits a firearm
of
Offense
Grade of
Offense
Punishment
Enhancement
in resisting any lawful
arrest. apprehension.
l160a
1160
A person who assaults
If a person shall
a peace officer
assault another
with intent to murder
with intent to murder
while said officer is
or investigation
in the performance of
his official duty
by a
knowing that the person
peace officer
assaulted is a
peace officer
felony
2 to IO yrs
felony
2 to life
felony
2 to 25 y"
if committed without malice
penalty shall be I to 3 yrs
Provided further that in
cases where the jury finds
such assault was committed
without malice but was made
with a Bowie knife or dagger
as those terms are defined by
law. or with any kind or type
of a knife. or in disguise, or
by laying in wait. or by
shooting into a private residence the penalty shall be
doubled.