Summary
In Danford, supra, this Court relied upon the lack of harm to the victim as its basis for finding a fatal variance between the indictment and the proof at trial.
Summary of this case from Yalch v. StateOpinion
No. 62855.
July 13, 1983.
Appeal from the 178th Judicial District Court, Harris County, Dan E. Walton, J.
Antonia Ingversen, Houston, for appellant.
Carol S. Vance, Former Dist. Atty. and Alvin M. Titus and John Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before TOM G. DAVIS and W.C. DAVIS, JJ.
OPINION
Appellant was convicted of attempted murder. The court assessed punishment, enhanced under V.T.C.A., Penal Code, § 12.42(d), at life imprisonment.
Appellant contends the evidence was fatally at variance with the indictment, which alleged that appellant attempted to kill the complainant by shooting him with a gun, in that the evidence showed only that appellant fired five shots at the complainant, who was unharmed.
In Windham v. State, 638 S.W.2d 486 (Tex.Cr.Ap. 1982), the court, in ruling that a fatal variance existed between the allegation that a defendant shot at a complainant and proof that, though the defendant squeezed the trigger, his gun did not discharge, overruled Colman v. State, 542 S.W.2d 144 (Tex.Cr.Ap. 1976), in which proof of shooting at had been held sufficient to sustain a conviction for attempt under an indictment alleging shooting.
We are bound by the holding of the en banc court in Windham, supra, and the judgment is therefore reversed with instructions to enter a judgment of acquittal.
The author of this opinion dissented in Windham and adheres to the belief that an allegation of attempted murder by shooting with a gun is sufficiently proven by evidence that five shots were fired at the intended victim. The majority of the court has spoken to the contrary, however.