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Full Opinion
Dennis LaFaine FLANAGAN, Appellant,
v.
The STATE of Texas, Appellee.
Court of Criminal Appeals of Texas, Panel No. 1.
*735 Robert A. Flynn, Dallas, for appellant.
Henry Wade, Dist. Atty. and Anne B. Wetherholt, Maridell Templeton, Lee Hight and Dan Garrigan, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ROBERTS, DALLY and TEAGUE, JJ.
OPINION
TEAGUE, Judge.
This is an appeal from a conviction for committing the offense of attempted murder. After a bench trial on a plea of not guilty, appellant was found guilty and the trial judge assessed his punishment at 20 years' confinement in the penitentiary.
Because the appellant challenges the sufficiency of the evidence to sustain the verdict of the trial court, it is necessary that we review the evidence. Before doing so, however, we point out that the indictment, omitting the formal introductory and concluding portions, alleges:
* * * * * *
*736 ... that one, DENNIS LAFAINE FLANAGAN hereinafter styled Defendant, on or about the 18 day of April in the year of our Lord One Thousand Nine Hundred and 77 in the County and State aforesaid, did unlawfully, then and there, with the specific intent to commit the offense of murder, attempt to cause the death of Jerry M. Rhodes, an individual, by knowingly and intentionally shooting at Jerry M. Rhodes with a shotgun, said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.
* * * * * *
It was thus incumbent upon the State to prove beyond a reasonable doubt each of the following elements:
(1) Appellant
(2) With the specific intent to commit the offense of murder
(3) Attempted to cause the death of Jerry M. Rhodes
(4) By knowingly or intentionally shooting at Jerry M. Rhodes
(5) With a shotgun
Jerry M. Rhodes, a Dallas police officer, testified that he got off duty at 12:30 o'clock a.m. on the day in question. He then proceeded in his pickup motor vehicle to his residence. While traveling in his pickup truck on R.L. Thornton Freeway in Dallas, Rhodes observed an automobile that was traveling in the same lane of traffic he was in. The automobile was approximately 75 to 80 feet in front of him. Rhodes was traveling between 50 and 60 miles per hour throughout the times mentioned herein. His attention became attracted to the other vehicle due to the erratic movements the vehicle was making, which included weaving on the freeway. When Rhodes' vehicle was approximately 50 feet from the other vehicle, he "noticed what appeared to [him] to be a shotgun blast [from the passenger side of the other vehicle] go toward the front of [his] vehicle." Rhodes testified: "It appeared to me that a gun had been shot toward the front or east of me fired forward." Thornton Freeway, where this occurred, is a four-lane roadway. Rhodes, who identified appellant as the person who fired the shotgun, testified that appellant "was sticking part of his body out of the vehicle, out of the window." Rhodes testified that appellant fired the shotgun "directly at me". However, Rhodes did not sustain any type injuries. Pellets from the firing of the shotgun struck only the front of the pickup, causing very minor damage to the center of the grill and the hood. Rhodes also testified that in his opinion the shotgun, which was not offered in evidence, was a "single barrel shotgun." The spent shell, which was not recovered, was described by him as "a green shotgun shell." In Rhodes' opinion, the damage done to his vehicle "was done by birdshot. Sounded like little B-B's hitting it or something." He also testified that the shotgun blast placed him in fear of his life and "scared him", which, of course, is understandable. Only one shot was fired from the shotgun.
Although armed with his police pistol, Rhodes did not attempt to use it, because other vehicles were traveling on the freeway and business establishments were located nearby on the feeder road to the freeway.
After the shotgun blast, Rhodes continued traveling on the freeway in the same direction as the other vehicle. After traveling approximately fifteen blocks, the other vehicle slowed down and Rhodes passed it. Both vehicles, however, continued traveling in the same direction until Rhodes turned off the freeway at the Interstate 20 exit. At that time, the driver of the other vehicle began to accelerate the speed of his vehicle. Rhodes, however, maintained the other vehicle in his view and wrote down a partial license plate number. He then continued traveling to his residence. After arrival, he called the Mesquite Police Department and reported the incident to that law enforcement agency. Later that morning, he went to the Mesquite Police Department where he saw the appellant and another person, apparently appellant's brother, in custody. At the police station he identified appellant as the person who fired *737 the shotgun. Prior to the night in question, he had never before seen the appellant.
Although Rhodes testified that he had had experience with shotguns, he was unable to express an opinion as to whether a shotgun, using birdshot, that was fired at a distance of 50 feet, would "break the windshield of a car." However, the evidence and testimony showed that no damage was done to the windshield of the pickup truck.
Charles A. Golden also testified for the State and he testified that near the time of the incident involving Rhodes, at another location, he observed an unidentified person "hanging out the window [of an automobile] with a shotgun. He was holding it about like this, you know, hanging out the window just holding the gun like this."[1] Golden relayed over his "CB" radio, to unnamed friends[2] with whom he was conversing at the time, a message of what had happened. "Well, I told them what had happened and I gave the license number three or four times, you know, to make sure it was understood." Golden was not asked, nor did he testify as to the description of the other vehicle, the description of the persons in the other vehicle, or what the license number was that he gave to "them".
Appellant also testified. He admitted he was in the vehicle described by Rhodes. However, he testified it was his brother who was displaying and "shooting [a shotgun] at the lights on the roadway." (Emphasis added) Appellant also testified as follows:
Q: (Mr. Hight, the prosecutor): It's your testimony that essentially everything we've talked about here did happen. It was just your brother and it wasn't you?
A: (Appellant): Yes, sir.
We are confronted at the outset with the following factual question:
Whether the shooting of a single barrel shotgun by a person in one motor vehicle toward another vehicle, a pick-up truck, with both vehicles traveling between 50 and 60 miles per hour at the time, with the distance between the vehicles being approximately 50', with the shell described as containing birdshot, with the birdshot striking approximately the center of the front grill of the other vehicle and doing very minor damage, is sufficient evidence to sustain the element of the specific intent to kill the driver of the second or other vehicle, who did not sustain any bodily injuries?
Based upon the above facts, we answer the question in the negative, and hold that the evidence presented by the State in this cause is insufficient to show that appellant had the specific intent to kill Rhodes when he fired the shotgun.
To support the conviction, the State relies on several general principles of law, i.e., a shotgun is a deadly weapon per se, see McClennon v. State, 492 S.W.2d 524 (Tex.Cr.App.1973); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Burks v. State, 165 S.W.2d 460 (Tex.Cr.App.1942), and the intent to commit murder may be inferred from the use of a deadly weapon per se. We agree with the State that those are sound and reasonable principles of law. However, whether a valid inference from a given set of facts, where one person shoots at another with a shotgun, may be deduced to reflect a specific intent to kill depends upon the factual context in which the shooting occurred. "Simply because a man shoots at another [with a shotgun] does not necessarily make it an assault with intent to murder." Cooper v. State, 60 Tex.Cr.R. 411, 132 S.W. 355 (1910); Montalvo v. State, 31 Tex. 63 (1868). "The element of the manner of use of such weapon must always be taken into consideration. A shotgun [fired at such] range as to make it reasonably apparent that death or serious bodily injury could not result from its use *738 would not be legally a deadly weapon. Scott v. State, 46 Tex.Cr.R. [315] 317, 81 S.W. 952." Medford v. State, 86 Tex.Cr.R. 237, 216 S.W. 175, 177 (1919). See also Burks v. State, supra; Cooper v. State, supra; King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677 (1958); Neal v. State, 534 S.W.2d 675, 676 (Tex.Cr.App.1975). If the type of shot fired from a shotgun is incapable of inflicting death, the mere firing of the shotgun by one person at another will not, without more, permit the inference that the shotgun was fired with the specific intent to kill.
It is therefore clear from the above decisions of this Court that before the specific intent to cause the death of another person may be inferred from the firing of a shotgun by one person at or toward another person, it must additionally be shown that the firing of the shotgun occurred with the capacity and under such circumstances as are reasonably calculated to produce the death of the other person. However, each case must be viewed in its own setting. In that regard, compare the facts of this cause with those found in Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583 (1953).
Cases which this Court has reversed, because the evidence was ruled insufficient to sustain the element of specific intent to kill, where one person fired a shotgun at another, are highly instructive. Notwithstanding that the facts in the case at bar and those stated in Burks v. State, supra, are different, we find what this Court stated in that decision is applicable to this cause. In Burks, the defendant was convicted on a plea of guilty to the charge that he had committed the offense of assault with intent to murder. Trial was to the court. Although the defendant had pleaded guilty to the charge, the issue on appeal concerned whether the evidence was sufficient to sustain the plea, and, in turn, the verdict rendered by the trial judge. This Court held that the evidence was insufficient to sustain the plea and ordered the conviction reversed. The facts as set out in the opinion reflect that the defendant fired a shotgun at another person at a distance of 75 feet. When the shot pattern reached the intended victim it had spread sufficiently that one of the shot penetrated the victim's hat while another shot entered a shirt sleeve of the victim. However, the victim was uninjured. This Court held that the trial judge was not authorized to render the judgment of conviction because the evidence was insufficient to establish that the defendant had the necessary intent to kill his victim. In arriving at its result, this Court stated in the abstract and applied to the cause several rudimentary principles of law, namely:
If appellant shot Mitchell with no intent to kill him, he would not and could not be guilty of assault with intent to murder, because a specific intent to kill is an essential ingredient of that offense. Such is made so by the statute ... The instrument with which the assault is committed may be looked to in determining the grade of assault. Ordinarily, when an assault is committed with a deadly weapon, the intent to kill may be inferred ... The instrument used in the instant case being a shotgun, it was, in the manner used, a deadly weapon per se. But to shoot at another with a gun does not necessarily constitute an assault with a deadly weapon or an assault with intent to murder. The shot must be fired under such circumstances as are reasonably calculated to produce the result intended. Hence if the intended victim be at such a distance as to be out of range of the gun, the intent to kill may be lacking.
See also, Neal v. State, supra.
In the instant case, the only evidence of appellant having the specific intent to cause the death of Rhodes, a required element of the offense of attempted murder, is the firing of the shotgun toward the vehicle driven by Rhodes, which was then traveling between 50 and 60 miles per hour, with pellets from the blast only striking the front part of Rhodes' vehicle. Yet, there is no testimony or evidence that this shotgun, which was fired from "approximately fifty feet", was capable of causing death. The actual damage Rhodes' vehicle *739 sustained was two "B.B." sized dents in the front grill and some chipped paint in the hood. There was no damage done to the front windshield of the vehicle. Rhodes did not sustain any bodily injuries. The minor damage done and the lack of injuries indicates to us that "this" shotgun blast, at least at the stated range and under the circumstances, was not capable of causing death. Furthermore, when the shotgun was fired, Rhodes was shown to be within the cab of the pickup truck, which also indicates to us that because of the distance between the vehicles he had a certain amount of protection from being physically struck by the pellets which came from the shot fired from the shotgun. The shotgun that appellant fired was never offered in evidence and there is not any showing by the State to account for its whereabouts, although the facts inferentially show that both appellant and his brother were arrested together at an unknown time and place by unknown officers of the Mesquite Police Department not very long after the incident involving Rhodes took place. Rhodes also testified that after the shooting occurred, he observed the spent shell casing bounce on the freeway, but he never made any effort to recover it. Thus, we are without testimony or evidence to show the size, weight, or what type shot was in the shell casing. Rhodes did testify, however, that in his opinion the shot consisted of pellets and not lead balls.
Although we find the conduct of appellant reprehensible, we are, nevertheless, unable to conclude from the facts and circumstances presented that the State proved beyond a reasonable doubt that the appellant, when he fired the shotgun, had the specific intent to kill Rhodes. Although this Court is duty bound to review a sufficiency of the evidence claim in a light most favorable to the verdict of the fact finder, see Johnson v. State, 93 Tex. Cr.R. 150, 245 S.W. 710, 711 (1922); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we are also Constitutionally bound to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.
"... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, no. 12, 99 S.Ct. 2781, 2789, no. 12, 61 L.Ed.2d 560 (1979). See also Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981). Applying that standard to the case before us, we hold that the State has failed to present sufficient evidence of specific intent to kill Rhodes.
The judgment is reversed. No further prosecution shall be had for the offense of attempted murder of Rhodes, but should the State determine that the appellant is guilty of a lesser included offense of attempted murder of Rhodes it is free to prosecute the appellant for committing that offense. See Rogers v. State, 575 S.W.2d 555, 559 (Tex.Cr.App.1979); Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978).
DALLY, J. concurs.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING AND ON COURT'S OWN MOTION FOR REHEARING
MILLER, Judge.
On original submission, a panel of this Court held that the evidence in the instant cause was insufficient to show that the appellant, who was convicted of attempted murder, had the specific intent to kill.
The State argues in its motion for rehearing en banc that since the offense of murder under V.T.C.A. Penal Code, § 19.02(a)(2), does not require that a person have the specific intent to kill, the panel was incorrect in engrafting such intent into the offense of attempted murder. As authority for its argument, the State refers us to Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976), and Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1976). After careful reconsideration, we find the Baldwin analysis to be incorrect and will accordingly deny the State's Motion for Rehearing.
*740 Nevertheless, although the State did not directly attack the holding of the panel opinion that the evidence was insufficient to show an intent to kill, we will en banc on our own motion, also reconsider that holding, find it erroneous, and affirm the judgment of the trial court.
I.
INTENT REQUIRED TO COMMIT ATTEMPTED MURDER
We will first address the issue raised by the State on rehearing.
Prior to the 1973 enactment of the new penal code, Texas had neither a general attempt statute similar to V.T.C.A. Penal Code, § 15.01,[1] nor a statute which authorized a conviction for murder when only an intent to cause serious bodily injury exists as is now found in V.T.C.A. Penal Code, § 19.02(a)(2).[2]
Although a specific intent to kill had been an essential element of the old penal code offense of assault with intent to murder,[3] the question which arose in Baldwin was whether the new penal code's enactment of § 19.02(a)(2) now permitted a conviction for attempted murder when a person acts with only the intent to cause serious bodily injury.
In Baldwin, supra, in an opinion approved by the Court, Commissioner Brown found that a specific intent to kill was no longer a necessary element of attempted murder. The analysis that justified this conclusion follows:
"In order to prove murder under V.T. C.A. Penal Code, Sec. 19.02(a)(2) the State must prove that the actor first, intends to cause serious bodily injury, second, the actor commits an act clearly dangerous to human life, that, third, causes the death of an individual.
"A person commits the offense of criminal attempt under V.T.C.A. Penal Code, Sec. 15.01 if, first, with the specific intent to commit an offense he, second, does an act amounting to more than mere preparation that third, tends but fails to effect the commission of the offense intended.
"Applying the foregoing analysis to the facts of the instant case the State was required to show the following elements of attempted murder. First, that the appellant intended to cause serious bodily injury.... Second, the State was required to show that the appellant committed an act amounting to more than mere preparation.... The third element of murder is not shown because the victim in this case did not die as a result of the acts of the appellant; therefore, the appellant failed to effect the commission of the offense intended.
"A specific intent to kill is not required under V.T.C.A. Penal Code, § 19.02(a)(2) for the offense of murder to be committed. The specific intent, therefore, required under V.T.C.A. Penal Code, § 15.01 would not be a specific intent to kill but need only be the intent to cause serious bodily injury." Baldwin, supra, at 616. (emphasis added)
This finding was reiterated by Commissioner Brown in Garcia, supra, and by Commissioner *741 Keith in Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976).
We initially note that § 15.01 plainly requires that a person must act "with specific intent to commit an offense." (emphasis added) Baldwin attempts to construe that language to mean that a person may be convicted of an attempted offense when he acts "with the same intent required by the attempted offense." If that were the language of the statute, then it would follow that the intent necessary to support a conviction for attempted murder could be the same as that required by § 19.02(a)(2) the intent to cause serious bodily injury. The statute, however, is not so worded.
Indeed, § 15.01 defines the elements of criminal attempt in traditional terms. The element "with specific intent to commit an offense" has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result, which in the case of attempted murder is the death of the individual.
Thus, a specific intent to kill is a necessary element of attempted murder. The authorities in support of this interpretation are numerous and convincing. See R. Perkins and R. Boyce, Criminal Law 637 (3rd ed. 1982);[4] C. Torcia, 4 Wharton's Criminal Law 565 (4th ed. 1981);[5] W. LaFave and A. Scott, Jr., Criminal Law 428 (1972);[6] Notes, Attempted Murder: Should Specific Intent to Kill be Required? 31 Baylor L.Rev. 243 (1979).
Moreover, the Baldwin conclusion leads to a potential overlap between the offenses of aggravated assault and attempted murder. Judge Odom correctly observed in his concurring opinion in Dovalina v. State, 564 S.W.2d 378, 385-86 (Tex.Cr.App.1978) that:
"Baldwin misconstrued the requirement of a specific intent to commit an offense by stating that the accompanying specific intent to cause serious bodily injury, required for murder under Sec. 19.02(a)(2), would suffice. [emphasis in original] Such intent to cause serious bodily injury is not the same as the intent to commit the offense of murder. A killing under Sec. 19.02(a)(2) is murder notwithstanding the fact that no murder was intended. And for precisely that reason, Sec. 19.02(a)(2) may not support an attempted murder prosecution: A prosecution for an attempted offense will lie only if there is an intent to commit such attempted offense. The intent to cause serious bodily injury relied on in Baldwin and Garcia, supra, is the intent to commit aggravated assault under Sec. 22.02(a)(1), supra, and if such intent accompanies an act that tends but fails to effect serious bodily injury, the offense is attempted aggravated assault, not attempted murder. [emphasis *742 added] If the act does cause serious bodily injury, the offense is aggravated assault, not attempted murder. Sec. 19.02(a)(1) is the only form of murder that requires an intent to murder, and since Sec. 15.01(a) requires intent to commit the offense attempted, only Sec. 19.02(a)(1) will support attempted murder."
See also Notes, Attempted Murder: Should Specific Intent to Kill be Required? 31 Baylor L.Rev. 243 (1979).
Furthermore, if we were to apply the Baldwin interpretation of § 15.01 to the remaining subsection of § 19.02, other offenses would potentially overlap, such as attempted murder and robbery. For instance, if a person who is in the immediate flight from the commission of a robbery and who commits an act that is clearly dangerous to human life such as driving his "getaway" car the wrong way down a one-way street guilty of attempted murder even though no one is killed or even injured? According to the Baldwin analysis, the only intent necessary to commit attempted murder would be the intent required by § 19.02(a)(3) which in this instance would be the intent required to commit the robbery. We contend the Legislature did not intend for § 15.01 to have such absurd results.
We can only conclude that the cursory analysis of this issue in Baldwin, which was blindly followed by Garcia and Teal, supra, was erroneous and obiter dicta.[7]
For the reasons discussed and contrary to the State's contention, attempted murder can only be committed by a person who has the intent to commit or complete the offense of murder, viz., the intent to kill. Baldwin, Teal, and Garcia are overruled to the extent they conflict with this holding.
The State's motion for rehearing is denied.
II.
SUFFICIENCY OF THE EVIDENCE
We next address the issue which was not raised in the State's brief on rehearing but which will be considered on our own motion en banc. We find the panel opinion incorrectly held the evidence was insufficient to prove that the appellant had the specific intent to kill.
The complainant, Dallas Police Officer Jerry M. Rhodes, testified that on the morning of April 18, 1977, around 1:00 a.m., he was driving his pickup truck down R.L. Thornton Freeway in Dallas when he observed the car in the lane just ahead of him weaving in and out of its lane. He next observed the front seat passenger stick part of his body out of the window and fire a shotgun toward the front of the car. Rhodes then testified:
"Q. What happened after that?
"A. Shortly thereafter we continued eastbound. I was behind the vehicle, I noticed the subject I believed had done the firing turn around and look at me. He stuck his body outside of the car."
"Q. When he turned to look at you was he looking through the rear glass while inside the car or what?
"A. No, sir. He stuck his body, his upper part of his body outside of the car hanging from the passenger window and turned around and *743 looked at the vehicle behind him which was me.
"Q. How much of his body was protruding out of the passenger window?
"A. Probably about a third of it.
"Q. The area around the navel or above?
"A. Right, yes, sir.
"Q. What did you then see him do?
"A. I saw him sit back down in the vehicle and reach in the back seat, pick up something that I didn't know what it was. I was approximately fifty feet behind him. I saw him again stick part of his body out of his car and I noticed that he had a gun in his hand and the gun was fired at me.
"Q. What type of gun was this?
"A. This was a shotgun.
"Q. When you say he fired a gun at you, you mean fired it directly at you?
"A. Yes, sir. He fired it directly at me. [emphasis added]
"Q. It wasn't like he was trying to shoot your tire or anything like that?
"A. No, sir.
"Q. This is how great a distance?
"A. Approximately fifty feet."
* * * * * *
"Q. When the shots were fired were they fired directly at you or at another part of the pickup?
"A. They were fired directly at me.
"Q. The muzzle of the shotgun was pointed directly at you when the blast was fired?
"A. Yes, sir."
Under cross-examination, Rhodes further explained:
"Q. And you said that he aimed the shotgun right at you. In other words, right at your body, driving the truck?
"A. Yes, sir."
* * * * * *
"Q. The only reason that you believe that they attempted to murder you was the fact that you saw the shotgun aimed at you and the trigger pulled?
"A. I saw the shotgun aimed at me and the shotgun was fired at me.
"Q. That is the only reason you believe they attempted to or had any idea of killing you or murdering you at all?
"A. That's correct.
"Q. And in fact the only damage to your vehicle was some place removed from where you were sitting and driving?
"A. The damage is to the front of my vehicle, the front of my truck. There is no concentrated damage on it whatsoever, but I was in front of my truck driving it."
After the second shotgun blast, Rhodes passed the car, which had slowed down to about thirty-five miles per hour. He eventually exited the freeway at a spot where he felt he could drive into a service station and call the police if the other car attempted to follow him off the freeway. The other car, however, continued to travel down the freeway after Rhodes exited. Rhodes testified that while he was still on the freeway he wrote the license plate number of the car on his hand, mistaking one of the six digits. After exiting, he called the Mesquite Police Department to report the incident, describe the car and the two individuals in the car, and relay the license plate number. The next morning, Rhodes went to the Mesquite Police Department, where he had been told two suspects had been arrested, and identified appellant as the person who had fired the shotgun.
The appellant testified that although he was in the car on the night in question, he was the driver of the car. His brother, who was the passenger, was drunk and was firing a shotgun out the window of the car in an attempt to hit the lights. Appellant testified he had no knowledge of any attempt *744 to shoot at Rhodes' pickup. His brother did not testify at trial.
The specific intent to kill may be inferred from the use of a deadly weapon, Bell v. State, 501 S.W.2d 137 (Tex.Cr.App. 1973), and a shotgun is a deadly weapon per se, Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972), unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result, Medford v. State, 86 Tex.Cr.R. 237, 216 S.W. 175, 177 (1919); Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679 (1893). For example, in Scott v. State, 46 Tex.Cr.R. 315, 81 S.W. 952 (1904), where the defendant fired a shotgun loaded with bird or squirrel shot at the complainant who was some 125 to 200 yards away, this Court held that it was not possible that any serious injury could have been inflicted and thus the shotgun was not in the manner of its use a deadly weapon. See also, Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1961); and Hargrove v. State, 501 S.W.2d 878 (Tex.Cr.App.1973).
Applying the above rules to the facts in the instant case, the panel opinion found that the "firing of the shotgun did not occur with the capacity and under such circumstances as are reasonably calculated to produce the death of the other person", and that the evidence was insufficient to prove beyond a reasonable doubt that the appellant had the specific intent to kill. On rehearing, we find that the panel opinion failed to consider the totality of the facts before reaching its conclusion. The issue considered by the panel in this case was phrased as follows:
"Whether the shooting of a single barrel shotgun by a person in one motor vehicle toward another vehicle, a pick-up truck, with both vehicles traveling between 50 and 60 miles per hour at the time, with the distance between the vehicles being approximately 50', with the shell described as containing birdshot, with the birdshot striking approximately the center of the front grill of the other vehicle and doing very minor damage, is sufficient evidence to sustain the element of the specific intent to kill the driver of the second or other vehicle, who did not sustain any bodily injuries?" Panel opinion at p. 737.
If the facts as posed in the above question were all that had been presented by the State in support of the element of intent, our holding might be different. In the instant case, however, Rhodes specifically testified that the appellant saw him, picked up the shotgun, and aimed the shotgun directly at him before pulling the trigger. Accordingly, the question of appellant's intent to kill, under a traditional sufficiency of the evidence analysis, should be:
whether any rational trier of fact could find beyond a reasonable doubt that Dennis LaFaine Flanagan had the intent to kill Jerry Rhodes when he reached into the backseat of the car he was traveling in and picked up a shotgun, leaned out the window of the car as it traveled between 50 and 60 miles per hour, aimed the shotgun muzzle directly at Jerry Rhodes who was driving a pickup truck about 50 feet behind him, and pulled the trigger of the shotgun causing it to fire?
Under this analysis, there is clearly sufficient evidence to support the trial court's finding. Appellant's act of pointing and firing the shotgun directly at Rhodes, who was driving a car only 50 feet behind him, demonstrates that it was his "conscious objective or desire" to cause the death of his target.[8]
The panel opinion's reliance on Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942), for authority to support its conclusion is misplaced for several reasons. The Court in Burks was faced with the situation wherein the defendant had pled guilty and then in support of his application for a *745 suspension of sentence the State elicited testimony from the defendant denying that he had intended to kill the complainant. The question then was whether the trial court should have withdrawn the defendant's plea of guilty and entered a not guilty plea (not verdict) since the evidence raised the lack of intent on the part of appellant. The Court did not hold that the evidence was "insufficient to establish that the defendant had the necessary intent to kill his victim", see panel opinion at p. 738, but rather that the defendant's testimony "reasonably and fairly" presented an issue of fact as to the defendant's intent. Burks, supra 165 S.W.2d at 464. Thus the trial court could not, under the law, accept his plea of guilty. The Court did not hold that the trial court could not have found the defendant guilty under the same evidence if the defendant's plea had been not guilty. To the contrary, the Court specifically found that the State had satisfied its burden of introducing evidence sufficient to show the defendant was guilty by the testimony of the complainant that the defendant had fired a shotgun at the complainant from about 75 feet away. Burks, supra at 464. Accordingly, the result in Burks would presumably have been different if the issue had not been raised during testimony on a guilty plea and if the State had not elicited from the defendant testimony specifically denying his intent to kill.
We find that the decision in Burks not only does not support the appellant's position, but is actually antipodal. A rational trier of facts would not be irrational in concluding that appellant manifested an intent to kill Rhodes by reaching for, pointing, and shooting the shotgun directly at him from 50 feet away.[9] Appellant's first ground of error is overruled.
III.
REMAINING GROUNDS OF ERROR
We will next address appellant's remaining grounds of error.
In his second ground of error, appellant contends that the evidence was insufficient to identify appellant as the man who fired the shot.
Officer Rhodes testified that prior to the shooting he observed appellant lean the upper third of his body out of the car and turn directly toward him. He described the lighting conditions on the freeway as "pretty well plus my headlights had illuminated his vehicle." He also testified that he got a good look at the subject, who was only 50 feet away. The next morning, Rhodes testified he went to the Mesquite Police Department and observed the following:
"A. Mr. Flanagan, Dennis Flanagan was sitting in a chair when I walked in to a little booking area there. I approached an Officer O'Neal of the Mesquite Police Department, he told me that they had arrested the two subjects which they believed had been involved in an attempted shooting or shooting. I asked him if they had said anything to him and he said no, that Joseph Flanagan had been quite hard to get along with and was creating some problems. He asked me if I knew which one did the shooting and I said, I turned around and I said, `Yes, sir, I know, there's no doubt in my mind,' and *746 he asked me which one and I told him, I said it was Dennis.
"Q. At that time you identified this Defendant?
"A. Yes, sir.
"Q. Dennis Flanagan is the one who had fired the shotgun at you earlier that morning?
"A. Right.
"Q. Now, was your identification of Dennis Flanagan there in the police station based on any kind of suggestions given you by the police?
"A. There was no suggestion because both Flanagan suspects had not talked to the Mesquite officer at all and I recognized Dennis from my contact with him on the freeway.
"Q. All right. You recognized him that morning and you recognize him now?
"A. Yes, sir."
The appellant, of course, testified that it was his brother who fired the shots.
The trial court was the trier of the facts, the credibility of the witnesses, and the weight to be given to their testimony and as such was free to accept or reject the testimony of any witness. The court chose to believe the State's version of the facts. Limuel v. State, 568 S.W.2d 309 (Tex.Cr. App.1978). The evidence as to identity was sufficient.
In this same ground of error, appellant appears to argue that the pre-trial identification tainted the complainant's in-court identification. Examining the identification under a totality of the circumstances test, see Jackson v. State, 657 S.W.2d 123 (Tex.Cr.App.1983), we note that (1) the complainant had the opportunity to view the appellant at the time of the offense from 50 feet away on a well lit freeway while the appellant was hanging out the window of the car; (2) the complainant, a trained city of Dallas police officer, carefully observed the appellant prior to, during, and after the instant offense while driving behind, next to, and in front of the appellant's car, and noted a description of the car and its occupants a