Aggravated Assault. Appeal from County Court at Law of Lubbock County; penalty, fine of $500.00. Hon. Robert J. Allen, Judge Presiding.
Burks & Brown, by Clifford W. Brown, Lubbock, for appellant.
William J. Gillespie, County Attorney, Lubbock, and Leon Douglas, State's Attorney, Austin, for the state.
[ 165 Tex. Crim. Page 557]
The conviction is for aggravated assault; the punishment, a fine of $500.
The alleged offense occurred in front of appellant's night club. The testimony of the state shows that E. J. Young struck Billy Russell, the alleged injured party, with his fist on the cheek bone, and knocked him down, then got on top of him, and that Don Goode had just pulled Young off Russell when the appellant came out of the night club and shot Billy Russell with a tear gas gun while he was getting up from the ground. Billy Russell testified that at the time he was shot he felt his "eyes go blurry;" later consulted a doctor and went to the hospital.
Dr. Nalle testified that he examined the injured party and found that "he had burns of the corneas on both sides of the clear part of the eye on both sides" and "he had a complete removal of the epithelial layer of the cornea;" that in his opinion "any burn of the eye is very serious;" and that the upper lids of the eyes and the forehead were also burned; and further testified that in his opinion tear gas could cause a serious burn to a person's eyes.
Dr. Watkins testified that upon his examination of the injured party he found that he had a severe burn of the cornea and lid of the right eye and "the margins of the lid on the left eye and the white part of the eye on the left;" that tear gas could have caused such burns and that he treated them as if they had been caused by tear gas.
[ 165 Tex. Crim. Page 558]
Appellant, testifying in his own behalf, related the events just preceding and at the time of the shooting as follows:
"A. Well, I just kept pulling him (Russell) off, I guess I done it maybe two or three times, and then when I pulled him off the last time, he asked me if I wanted some part of him.
A. Well, I -- when he started toward me, well, I had been sick and I didn't feel like taking a whipping myself and I surely didn't want to jump on anybody, so, ...