Opinion
No. 42704.
March 18, 1970.
Appeal from the 177th Judicial District Court, Harris County, Miron A. Love, J.
Homer L. Cox, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and James L. Muldrow, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The offense is assault with intent to murder without malice; the punishment, two (2) years.
Appellant's first ground of error is that the State failed to establish that he did the shooting. Scoggins, the person who was shot in the back outside a tavern and near the door testified that when walking away from appellant, whom he had threatened to whip, someone hollered, he turned his head, and saw a gun in appellant's hand, and he was 'hit about then.'
At this juncture, the State rested.
Appellant called Monzell Smith, and it was shown by her on cross examination that though she did not witness the shooting of Scoggins outside, she did see appellant come to the door of the tavern and shoot into the building three times, hitting her once. She saw no one else present with a gun in hand. She testified that Scoggins had come into the tavern and his behind the bar when this took place.
Appellant testified that he shot, but did so without the intent to kill and merely to scare. Scoggins had threatened to whip him. The jury by the verdict rejected such testimony.
In Tapley v. State, 158 Tex.Crim. R., 256 S.W.2d 583, 586, we said:
"To say that even though the accused pointed a deadly weapon directly at the injured party and fired the same, but that in doing so he did not intend to kill, would be bordering on an absurdity."
Finding the evidence sufficient to support the conviction, and finding no reversible error, the judgment is affirmed.