EVEROLD WAYNE STEWART,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00116-CR
EVEROLD WAYNE STEWART,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, ROWE, AND BURNETT
OPINION BY JUSTICE BURNETT
JANUARY 25, 1989
        Everold Wayne Stewart appeals his conviction for murder. The jury assessed punishment at twenty-five years' confinement. In two points of error, Stewart asserts that the trial court erred when it refused a jury instruction on the lesser included offense of aggravated assault and that there is insufficient evidence to support the conviction. We disagree and, accordingly, affirm the trial court's judgment.
        The record reflects that on August 13, 1987, at approximately 2:00 a.m., a taxicab driver, Simon Gemda arrived at an apartment complex to pick up Michelle Chin and her fiancé, Leroy Davidson. When Gemda knocked on the apartment door, they asked him to wait while they bought sodas in a building about twenty yards away. As Davidson and Chin began to walk back to the cab from the soda machine, two men carrying guns ran past them. One of the gunmen turned and fired toward some bushes. Three other men then emerged from an alley by these bushes and began firing back. Chin and Davidson were caught between the two groups. Davidson testified that he saw one of the three men fire approximately three times. Chin then pushed Davidson and he began to run. Davidson saw Chin stumble and fall.
        From his vantage point where he was lying between two cars, Davidson saw Chin lying on her back, twitching, while the men continued to fire. Stewart and another of the three men approached the spot where Chin fell, very close to where Davidson was lying, and continued to fire shots toward a lot where the two men were running. Davidson estimated that one shot was fired from the two men in front of him and sixteen or seventeen shots were fired from the three men behind him. The three gunmen then headed back toward the alley. Davidson ran to Chin and picked her up by the shoulders. She was bleeding profusely from the head. The cab driver told his dispatcher to send an ambulance. Chin was later pronounced dead at Baylor Hospital. The cause of death was determined to be a gunshot wound to the head.
        In his first point of error, Stewart argues that the trial court erred when it denied his request to instruct the jury on the lesser included offense of assault. The State prosecuted Stewart under penal code section 19.02(a)(1), intentionally or knowingly causing the death of an individual, rather than section 19.02(a)(3) which specifically allows for transferred intent. TEX. PENAL CODE § 19.02(a)(1) (Vernon 1974). However, in Williams v. State, 567 S.W.2d 507, 508-09 (Tex. Crim. App. 1978) the Court of Criminal Appeals held that the Legislature intended the transferred intent doctrine to apply to the section under which Stewart was prosecuted. Since there is no evidence in the record that Stewart's actions were directed toward Chin, but for the doctrine of transferred intent, Stewart would be guilty of neither aggravated assault nor murder.
        Having established that this doctrine applies in this case, a two-step analysis is used to determine whether a charge on a lesser included offense is required. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981).
        Aggravated assault is a lesser included offense of murder if the evidence raises the issue. See Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983). Thus, the first step of the test is met in this case. However, there is no evidence present that Stewart is guilty of only aggravated assault. The evidence in this case shows that Stewart fired his gun towards two other men and the victim, Michelle Chin, was caught in the middle. Such an act clearly manifests only the intent to kill and not merely an intent to threaten as required for aggravated assault. See Godsey v. State, 719 S.W.2d 578, 584-585 (Tex. Crim. App. 1986). We overrule Stewart's first point of error.
        In his second point of error, Stewart contends that there is insufficient evidence to support the murder conviction. He argues that the evidence demonstrates that although he was present at the scene, the deceased could have been shot by someone else. When an appellate court reviews sufficiency, it must determine whether when viewed in the light most favorable to the prosecution, a rational finder of fact could have found the essential elements of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Girard v. State, 631 S.W.2d 162, 163 (Tex. Crim. App. 1982). There is direct testimony by both Davidson and Gemda that Stewart, himself, shot the victim. Thus, the jury could properly find beyond a reasonable doubt that Stewart is guilty of murder.
        Additionally, the jury was charged on the law of parties. The penal code provides that:
 
 
 
        A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
TEX. PENAL CODE § 7.02(a)(2) (Vernon 1974). Although the Stewart's presence at the scene of the offense alone is not sufficient to prove guilt, it is a circumstance which combined with the eyewitness testimony, is ample to determine that Stewart was a guilty participant. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Again, viewing the evidence in the light most favorable to the State, a rational jury could have found the essential elements of murder beyond a reasonable doubt by use of the law of parties. Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983). Accordingly, Stewart's second point of error is overruled.
        The judgment of the trial court is affirmed
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00116.F
 
 
File Date[01-02-89]
File Name[880116]