Opinion
No. 33558.
June 14, 1961.
Appeal from the County Criminal Court, No. 2, Dallas County, Dean Gauldin, J.
J. P. Moseley, Dallas, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is aggravated assault by an adult male upon a female; the punishment, 6 months in jail and a fine of $200.
The female named in the information and her eleven year old daughter testified that appellant, an adult male, after accompanying them to a grocery store, went to his car which was parked nearby, took a pistol from the glove compartment, then returned to their car, took the keys and pointing the pistol at them said 'You better get out of this car, you sonofabitches, I am going to kill you'; that they got out and the mother told her daughter to run and she walked up to appellant and was 'holding his arm so he couldn't shoot her' when the gun 'pointed down at my mother's foot' was fired.
Appellant did not testify and offered no witnesses. In his brief he argues that the evidence does not show any aggravated assault upon a female, but possibly shows that appellant committed 'an aggravated assault upon the prosecutrix with a deadly weapon."
We are unable to agree that an assault by an adult male upon a female made with a deadly weapon does not constitute an aggravated assault as defined in Art. 1147(9), Vernon's Ann.Penal Code, which reads, in part: 'An assault or battery becomes aggravated * * * (9) When committed by an adult male upon the person of a female * * *."
Appellant cannot be heard to complain that he was not convicted of a greater assault, or of aggravated assault with a deadly weapon, the evidence being sufficient to sustain the conviction for the offense charged and submitted to the jury.
The judgment is affirmed.