Rhonnie Brown v. State ( 1990 )

Brown-R v. State

AFFIRMED 20 SEPTEMBER 1990

NO. 10-89-256-CR

Trial Court

# 89-510-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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RHONNIE BROWN,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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This is an appeal by defendant Brown from conviction for attempted murder for which he was assessed 12 years in the Texas Department of Corrections and a $3,750 fine.

Defendant went to the apartment of Claudette Ali with whom he had had a romantic relationship; saw Norman Rauls' car in front of the apartment; kicked in the door; found Rauls and Claudette unclothed; cut Rauls 5 times with a machete and additionally cut him with another knife; Rauls spurted blood and a cut to his head resulted in his brains showing; and defendant had told a witness 4 days prior to the offense that, "I'm going to do something to [Rauls]".

Defendant appeals on 2 points.

Point 1 asserts: "The evidence is insufficient to support a judgment of conviction as the State failed to prove that [defendant] had the specific intent to kill".

On appeal the evidence must be viewed in the light most favorable to the verdict when determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, U.S. S.Ct., 443 U.S. 319; Butler v. State, Ct.Crim.Appls, 769 S.W.2d 234; Moreno v. State, Ct.Crim.Appls, 755 S.W.2d 866.

Defendant had a prior romantic relation with Ms. Ali; the complainant had been dating Ms. Ali for some time; defendant went to the apartment of Ms. Ali and recognized Norman Rauls' car in front of the building; defendant crashed in the door, pulled the telephone loose, proceeded to the bedroom where he found Ms. Ali and Rauls unclothed; defendant repeatedly stabbed Rauls with both a machete and a smaller knife inflicting scores of serious wounds which literally spewed blood and exposed Rauls' brain. Four days earlier defendant had told Mrs. Ali's brother that, "I am going to do something to [Rauls]".

Specific intent to kill may be proved by inferences from indirect statements; Moreno, supra; and may also be proved by circumstantial evidence. Medical evidence was that several of Rauls' wounds were life threatening. Defendant argues that if he wanted to kill Rauls he had plenty of opportunity to finish him off. We think the evidence supports the conviction; that the jury was authorized to believe from the evidence that defendant intended to kill Rauls and, accordingly, overrule point 1.

Point 2 asserts: "The trial court committed reversible error by improperly defining the lesser-included offense of aggravated assault in the court's charge".

Defendant contends the instruction given on aggravated assault was fatally defective because it failed to contain both ways in which the offense can be committed.

Assuming, without deciding, that the court's charge improperly set out the offense of aggravated assault, any error in the instructions setting out the lesser-included offense cannot constitute reversible error when the jury returned a verdict on the primary charge. We presume the jury followed the instructions contained in the court's charge. O'Pry v. State, Ct.Crim.Appls, 642 S.W.2d 748. The court's charge instructed: "Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of attempt to commit murder and next consider whether he is guilty of the lesser offense of attempt to commit voluntary manslaughter".

The court further instructed: "* * or if you have a reasonable doubt as to whether he had the specific intent to so cause the death of the said Norman Rauls, you cannot convict the defendant of either attempt to commit murder or attempt to commit voluntary manslaughter. In such event of said reasonable doubt, you will acquit the defendant of attempt to commit voluntary manslaughter and consider next whether or not defendant is guilty of aggravated assault".

In accordance with the instructions the jury stopped its consideration of the charge after finding defendant guilty of attempted murder "because they did not have a reasonable doubt that would require them to consider further". O'Pry, 642 S.W.2d at 765. To the same effect are Thomas v. State, Ct.Crim.Appls, 587 S.W.2d 707; Garrett v. State, Ct.Crim.Appls, 642 S.W.2d 779; DeLeon v. State, CA (San Antonio), 659 S.W.2d 860; Depauw v. State, CA (Amarillo), 658 S.W.2d 628.

Point 2 is overruled.

AFFIRMED

 

                          FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]

All fees due to the Tenth Court of Appeals Clerk, including the $125 filing fee and $10 motion fees for nine motions ($90), are due within ten days after the date of this Order.  If payment is not timely made, the Court may dismiss Hashmi’s appeal on the merits.  See Tex. R. App. P. 42.3(c).

 

PER CURIAM

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Brief struck; motions denied; fees due

Order issued and filed August 31, 2005

Do not publish