Rodriguez v. State

375 S.W.2d 289 (1964)

Natividad RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 36355.

Court of Criminal Appeals of Texas.

January 15, 1964.

Rehearing Denied February 26, 1964.

Theo. Pat Henley, San Antonio, for appellant.

James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Upon his plea of guilty, a jury being waived, appellant was convicted of assault with intent to murder with malice and his punishment was assessed at confinement in the penitentiary for seven years.

At the trial, evidence was introduced by the state which showed that on the date alleged appellant was drinking beer at the Longhorn Ice Station in the city of San Antonio. The injured party and others were also at the place, drinking. After *290 causing a disturbance and stating that he had "something to hurt somebody with," appellant was requested by the owner of the place to leave the premises. Appellant thereupon went outside to his automobile, secured a gun, and fired a shot into the ice station, the bullet striking the injured party in the head. From the scene, the injured party was taken to the hospital where he remained twenty-four days and, as a result of the gunshot wound, was paralyzed.

As a witness in his own behalf, appellant stated that on the night in question he was drinking beer at the ice station and that he was drunk; that someone jumped on him and he went to his automobile, obtained the gun, and fired the shot into the ice house, which shot struck the injured party. Appellant further testified that the allegations contained in the indictment were true and correct.

Appellant's sole contention on appeal is that the evidence is insufficient to support his conviction for assault with intent to murder with malice, but, at the most, could only sustain a conviction for assault with intent to murder without malice.

With such contention we do not agree.

By his own sworn testimony, appellant admitted that the allegations of the indictment of assault with intent to murder with malice aforethought, were true and correct. This was a judicial admission by him that the assault to murder was with malice. Also, the proof that appellant shot into the ice house, with a gun, where there were several people, is sufficient to sustain the conviction for assault with intent to murder with malice. Escobar v. State, 162 Tex.Cr.R. 115, 282 S.W.2d 873. Proof that appellant shot the injured party in the head with a gun was sufficient to authorize a finding that the shooting was actuated with malice. Muckleroy v. State, 165 Tex.Cr.R. 629, 310 S.W.2d 315; Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219.

The judgment is affirmed.

Opinion approved by the court.