The offense is aggravated assault; the punishment, 180 days in jail and a fine of $250.00.
Our prior opinion is withdrawn and the following is substituted in lieu thereof.
The facts reflect that appellant, age 21, kicked a 15 year old boy in his groin. The information alleged and the court submitted the case to the jury under Subdivision (8) of Article 1147, Vernon's Ann.P.C. which makes an assault aggravated when committed with premeditated design and by use of means calculated to inflict great bodily injury. The early case of Pinson v. State, 23 Tex. 579, is authority for the rule that the grounds of aggravation alleged must be established by the testimony. In the relatively recent case of Ohlrich v. State, 162 Tex.Crim. R., 287 S.W.2d 478, we had occasion to discuss the facts necessary to be proven in a prosecution under Subdivision (8) of Article 1147, supra, one of them being '(3) with premeditated design, that is with fixed purpose formed in the mind, and not upon a rash, unconsidered impulse.' In Ohlrich v. State, supra, the trial was before the court and we held that since in such cases all disputed facts must be resolved in favor of the judgment, the facts were sufficient to support the trial court's finding that the assaults were premeditated. But such is not the case before us here. In the case at bar the injured party walked across the street to where appellant, whom he did not know, was seated in an automobile with the injured boy's brother standing near by. When appellant, who had been drinking, asked the injured boy to 'Come here' in order to show him a straw hat which had the top cut out, he demurred and after a few words appellant got out of the automobile and kicked the injured boy one time. While serious injury was shown which would have authorized a finding of guilt under Subdivision (6) of said Article, the case was submitted to the jury under Subdivision (8), and we have concluded that the evidence is insufficient to support a finding that such act was not a 'rash, unconsidered impulse.'
For the reasons stated, our prior order of affirmance is set aside; the judgment is reversed and the cause is remanded. *Page 199