Opinion
No. 45331.
November 29, 1972. Rehearing Denied January 17, 1973.
Appeal from the 180th District Court, Harris County, Fred M. Hooey, J.
George T. Ellis, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Alvin A. Horne, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
This appeal is from a conviction for the offense of assault with intent to murder. The jury found appellant guilty of assault with intent to murder with malice aforethought and the court assessed punishment at sixteen years.
Appellant contends that the evidence is insufficient to show a specific intent to kill and that the evidence fails to show that his actions resulted from malice.
The record reflects that the complaining witness observed the appellant seated in a parked pickup truck; that a young couple were walking on the sidewalk near the pickup; that appellant was fussing at the couple; the young lady started crying and acting like she was scared and, the couple walked into a house. The appellant then started his pickup and proceeded down the street. The complaining witness got into his truck and proceeded to catch and curb the pickup truck driven by the appellant. The witness stated that he wanted to find out what was wrong with the appellant. He walked back to the pickup and when he got alongside of it the appellant shot him with a pistol. The witness testified that he had never previously seen the appellant.
Whenever the means used are such as would ordinarily result in the commission of an offense, the intention to commit that offense is presumed. Article 45, Vernon's Ann.P.C. Intent to murder may be shown by the use of a pistol which is a deadly weapon per se. Gamblin v. State, Tex.Cr.App., 476 S.W.2d 18. See also, Stallings v. State, Tex.Cr.App., 476 S.W.2d 679; Hall v. State, Tex.Cr.App., 418 S.W.2d 810.
A pistol being a deadly weapon per se, the shooting of the complaining witness at close range with such weapon authorized a finding of malice. Gamblin v. State, supra; Taylor v. State, Tex.Cr.App., 470 S.W.2d 693; Ratcliffe v. State, Tex.Cr.App., 464 S.W.2d 664.
The judgment is affirmed.