author: McDONALD, Presiding Judge. WOODLEY, Judge MORRISON, Judge DICE, Commissioner.

text:
    John Franklin BURNS, Appellant, v. The STATE of Texas, Appellee.
    No. 37516.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Rehearing Denied April 7, 1965.
    Louis G. Mehr, Court appointed atty., J. R. Ramsey, Houston, for appellant,
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder; the punishment, death.

The evidence adduced by the state is reflected by the testimony from 10 witnesses.

On the 21st day of August, 1963, appellant, John Franklin Burns, W. H. Perkins, and Jessie J. Odum, deceased, spent a good portion of the evening going from bar to to bar, and drinking beer, in the section of Houston and surrounding areas through which the Market Street Road passes in Harris County, Texas. Perkins and appellant met about 7:30 P.M. at Jack and Betty’s Lounge or Bar, in Cloverleaf community on Market Street. They drank some beer together. Then, with another man, Franklin Gregory, they went to the Red Lantern in Greens Bayou, where they drank a beer, and then proceeded to Sand’s Bar down the street, also in Greens Bayou. From there, Perkins and appellant went to Eddie’s Ice House or Drive-In, also in Greens Bayou, Gregory leaving them. After about an hour to an hour and a half at Eddie's Ice House, Perkins and appellant left and subsequently stopped at “The Place” in Cloverleaf. There, about 9:30 or 10:00 P.M., they met Jessie Odum, the deceased. The three of them left together, Odum and appellant in appellant’s truck, and Perkins in his own vehicle. They went to Catfish Charlie’s Place in Cloverleaf, drank a beer, spending about half an hour there. From there, they continued on to Jack & Betty’s Place in Perkin’s truck and drank one beer. Then, they went back to Catfish Charlie’s. The car of the deceased, Odum, was at the Red Lantern. At Catfish Charlie’s, Perkins let appellant and deceased out of his truck and saw them go toward appellant’s truck. Then, Perkins turned back and went to the Greens Bayou Cafe. That was the last time that he saw Jessie Odum alive.

On this night, sixteen-year-old James L. Roberts, a student at Channelview High School, had gone to a dance with another boy named Vance Townsend, and a girl named Sherry Brown. The young people were in a car driven by Sherry’s father, Robert Brown, on their way home, about 11:30 P.M. They were going on Highway 73, which is near Market Street, and had turned off at the exit of Highway 73, going to Channelview, proceeding in an easterly direction. This was the feeder street to Sheldon Road. Young Roberts saw a truck on the side of the road and told Mr. Brown he thought something was “funny” back there. He had seen a man in a ditch, with another man over him. Mr. Brown backed up and, in the car lights, young Roberts saw appellant going through the pockets of a man lying in the diteh, and heard what he thought was a gurgling sound from the man in the ditch. The noise sounded as though the man had phlegm in his throat and could not get it out. The man was moaning and groaning.

Appellant, being asked what was wrong, replied that his buddy was drunk, that everything was okay, and for them to go on. They did go on. As soon as Roberts got home, he told his mother something was wrong. They called the Harris County Sheriff’s Office. Then, Roberts and his brother went back to the scene and met Sheriff’s Deputies. While they were waiting at the scene, from which the truck and appellant had disappeared, the appellant drove by in his truck and young Roberts pointed it out to the deputies, who followed appellant and arrested him. Appellant had blood, of the same type as that of the deceased, on his face, clothing, hands, on a knife of which he had possession, and at various spots on his truck. He had blood on his shoes. Deputies found the deceased lying in the ditch, with his throat cut from ear to ear so badly that his head almost fell off when they moved him. He was lying on top of a piece of pipe. The back of his head had been struck — a blow with some instrument. He had four mortal wounds, the cut throat, and three cuts or stabs in the left chest. The testimony as to the seriousness of the wounds was that of the Harris County Medical Examiner, Dr. Jachimczyk.

The testimony of Roberts was corroborated by that of Miss Sherry Brown.

Deputy John Klevenhagen testified that he found the deceased lying dead in a quarter-inch deep pool of blood. The witness further related: “His throat was cut from ear to ear. It was barely holding his head on”. In response to a question as to the depth of the wound, he said: “You could see all the way through his head. His throat was cut and his neck was cut completely through. The only thing that held his head on when we put it on the stretcher is that I had to take my hand and hold it, to keep it from falling off the body.”

Deputy Klevenhagen caught appellant about a quarter of a mile from the location of the crime, after appellant was pointed out by young Roberts. He testified as to appellant’s condition — blood spattered on his face, blood on his glasses, blood over the top of his pockets, blood in his pockets where he had run his hands in his pockets, blood on his hands, blood on the soles of his boots. The deceased’s pockets were turned inside out. Appellant had considerable money in his pockets when he was arrested, and stated in his confession that he had drawn $20.00 the day of the events, and only had forty-five cents left at the time of the killing. Appellant stated in his confession that he put the money which he “got off Jessie” in his shirt pocket.

The voluntary statement of appellant was offered in evidence. Prior to it being admitted, the careful trial judge afforded appellant’s counsel the opportunity of, and he fully examined state’s witness, Captain M. F. Patton of the Harris County Sheriff’s Office, on voir dire, out of the presence of the jury, on the facts and circumstances surrounding the taking of the confession. No question of force or coercion was raised, the appellant’s counsel did inquire if appellant was intoxicated at the time that he gave the statement, and the witness responded that he was not. Appellant’s counsel then stated that he objected to the confession, but he did not state upon what grounds. The trial judge then stated that he held the confession admissible. The jury was then brought in and the confession admitted . into evidence and no further nor other objection was urged nor was any motion to strike made.

Appellant adduced testimony from the witness, Ruth Fowler, who testified that she owned the beer tavern on Market Street Road known as “The Place”. She related that the deceased, Odum, the appellant and Perkins came in her place late on the evening in question and that “they were all visibly intoxicated,” and, “I asked them to leave.”

Appellant recalled state’s witness, John Klevenhagen, who testified that appellant did not appear to have been drinking.

Officer Deckman, a state’s witness, was recalled by appellant, and he testified that he did not think appellant was intoxicated, but he had been drinking, but “he did not appear intoxicated.”

Appellant then took the stand in his own behalf and testified as to his age, personal background, relating his two marriages, his service in the navy and army and the various beer joints visited on the evening in question. He related that Bill Perkins let him and Jessie Odum, the deceased, out of his truck; that he offered to drive the deceased to his car but deceased said he wanted to go to Channelview.

Appellant related that he suggested to deceased that he take him to his car and “then you can go from there”, but deceased stated: “Well, if people don’t do what I want them to, I have means of making them do it.” Appellant said that after deceased made the foregoing statement that he decided that the best thing to do was to take him to Channelview and that he started toward Channelview, but he thought that he had a flat tire and he stopped and went around to the right side of the truck. He got his flashlight from the glove compartment, checked his tires and found they were not flat, and put the flashlight back in the glove compartment and at that time “Jessie turned around and straightened up and looking at me all glassy-eyed, with a weird look, and he slid out of the truck with that piece of pipe in his hand.” Appellant stated that he was scared and that he did the only thing that he knew to do — “I was taught all the time in the service to defend myself.” Appellant disclaimed any knowledge of or ownership of the pocket knife which had been recovered by the officers and which had been introduced into the evidence by the state as an exhibit. Appellant said that he remembered cutting Jessie, “trying to defend myself from him, and that piece of pipe.” He stated that the deceased swung at him with the pipe, but that he was not hit. He did not recall getting the piece of pipe away from deceased, nor did he recall hitting deceased with the piece of pipe. Appellant also testified that he was not aware of when he was cutting deceased. He stated: “No, sir, not at first. After it was over and I left, it seemed like there was a blank space in between there, until I got to the San Jacinto River, and then I turned around and came back.” Appellant then related that he came back to the scene and the Sheriff’s car and an ambulance were there; that the ambulance was just leaving and he started by real slowly; that he did not know that he had killed the deceased and that he told the officers that he had come back to take the deceased to a doctor but the officer told him that “a doctor won’t do him no good.” Appellant stated that this was the first he knew that the deceased was dead. He was then asked: “Did you know at that time whether he had been cut?” He replied: “No, sir, not until the officers told me.” Later on in his testimony the appellant was asked by his counsel: “Do you remember cutting him?” and the appellant stated: “Yes, sir”, but he related that he did not remember what happened after he cut the deceased, that he just remembered “him falling, and that was it.”

Appellant testified upon cross-examination that he had the knife in his hand but that he did not know where it came from. He was then asked the question: “And with that knife, I believe you say, you remember cutting Jessie Odum, but you don’t remember where. Is that your testimony?” Appellant responded: “Yes, sir.” Appellant was subsequently asked this question: “Why did you hit him in the head with the pipe?” He replied: "I didn’t hit him”. Appellant testified that he did not remember robbing the deceased, nor did he remember telling the Roberts boy to go on, “this fellow is drunk. I will take care of it”. Appellant was then shown a picture of deceased. He testified he could recognize deceased’s face, and that deceased’s neck was wide open. Then came this testimony:

“Q: You know enough about human beings to know that the man who cut that throat had to have a lot pf muscle behind it. It couldn’t be a little-old fish knife. It had to be a lot of muscle ?”
“A: Yes, sir.”
“Q: Do you remember inflicting that neck wound?”
“A: Not exactly the neck wound.”

The Court properly charged the jury on the issue of self-defense, and this issue was resolved against appellant.

We find the evidence amply sufficient to support the verdict.

There are no formal bills of exception. No exceptions and objections were taken to the court’s charge, nor was any request made for a special charge.

Appellant’s counsel urges as error one contention, which is the admission into evidence of certain photographs. This contention is brought forward by informal bill of exception. Initially the state adduced testimony from Deputy Sheriff Eddie Knowles who testified that he took all of the pictures and that they truly and accurately represent what is shown in them. The state then offered into evidence six different photographs, state’s exhibit No. 9, (which only showed a public road), having been offered earlier without objection. State’s Exhibits Nos. 3 and 7, being respectively a picture of appellant’s hands with what appears to be a few blood stains on them, and a picture of a man lying face down in a clump of grass with a piece of pipe protruding from underneath his body. At the time these two exhibits were admitted appellant’s counsel stated: “If it please the court, we would like to object to the admission of these photographs in evidence”. The Court then stated: “I am going to overrule your objection as to these two (State’s Exhibit No. 3 and State’s Exhibit No. 7) and will rule on the others later.” Then, at the conclusion of the testimony, when the appellant rested, the state re-offered Exhibits Numbers 4, 5, 6 and 8, with the statement to the court that in view of the fact that “It is now an issue of the case, of murder with or without malice, and I think for the purpose of showing malice, the pictures are admissible.” The Court responded: “All right”. Appellant’s counsel then stated: “The same objection as before. The testimony of the Medical Examiner is sufficient to describe the nature and seriousness of the wounds, and these pictures would only inflame the minds of the jury.” The Court overruled the objection and the exhibits referred to were passed to the jury for their inspection. Both sides then rested their case.

Two of the complained of photographs are colored, the other two being black and white. The first one, Exhibit 4, is a colored photograph of the deceased shown lying on his back with his eyes open and his entire throat lying open about an inch wide just under the chin, showing what appears to be some internal muscles or organs on the interior of the throat and a mass of red blood on the throat, chin and two red gashes on the chest. Exhibit No. 5 is similar to No. 4 except No. S is not in color and the deceased has a shirt on in this picture. Exhibit No. 5 appears to have been taken by a photographer who took the shot directly from above deceased’s body, while the picture taken in Exhibit No. 4 appears to have been taken by a photographer standing at the left side of deceased. Exhibit No. 6 is a black and white photograph of the deceased, shown lying on his back with the slit throat clearly visible. This exhibit apparently was taken by a photographer while standing on the right side of deceased. Exhibit No. 8 is a colored photograph of deceased, shown lying down on his face on a stretcher in a pool or small quantity of blood underneath his head and blood on the back of his head and on the right ear and across the back of his neck.

Appellant cites the Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880, case, in which Judge Woodley wrote the opinion and cited therein the case of Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740. Appellant points out that according to the law of the above cited case the material factor in determining the admissibility of photographs is whether they illustrate a material fact. He also cites Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255, in which this Court held that the photographs did shed light on the transaction and tended to refute appellant’s testimony and his version as to how the fatal injury took place. A disputed issue of fact was involved in that case which the photographs tended to solve. Wilkerson v. State, 170 Tex.Cr.R. 525, 342 S.W.2d 431 is cited us by appellant to illustrate his contention that the photographs were admitted to resolve a disputed fact issue. Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112, also cited by appellant held that photographs were admissible to show the number and location of wounds, which was a resolution of a disputed fact issue created by appellant and also the photographs were “introduced as bearing on the question of malice.” We shall later discuss this case. Appellant finally cites us the case of Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625, which we shall discuss later.

Appellant contends that the testimony of Dr. Joseph Alexander Jachimczyk and that of Deputy Sheriff Johnny Klevenhagen clearly shows without dispute the nature of the wounds, their location and the probable effect of each wound, and he contends that at no point in appellant’s testimony, does he deny cutting the deceased or question the extent of the cutting or the location of the wounds. Appellant then cites the additional cases of Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314; Whaley v. State, Tex.Cr.App., 367 S.W.2d 703 and Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178, in which Alcorta v. State, supra, is cited with approval. All of these cases called for reversals because of the admission into evidence of photographs which did not solve any disputed issue, most of these cases also pointed out that the photographs were inflammatory, and should not, under a similar record, be admitted in evidence upon another trial.

It is clear to us that appellant’s testimony, as above set forth by us, does create a disputed fact issue in several instances. Appellant testified in one juncture of his testimony that he did not know where he had cut the deceased. He also testified that he did not hit the deceased with the iron pipe. This testimony created a disputed fact issue and made admissible the photographs. The photographs of the front part of deceased’s body clearly show the wounds from the cutting and those on the back side of deceased show the injuries to the head, indicating a blow from the iron pipe or some similar object. We overrule appellant’s contention. While the photographs were gruesome, they were admissible. The testimony of the various witnesses who observed the body and testified in detail as to what they saw was also gruesome. The state had charged the appellant with a specific crime and had the burden of proving such charge beyond a reasonable doubt. In attempting to carry such burden it had to accept matters as it found them and could not be squeamish about them. While the evidence was cumulative in the sense that the description of the body as it was found had already been related to the jury, the photographs tended to present material details tending to refute appellant’s testimony and thus resolve the disputed fact issue as to the places where the decedent was cut and his being struck or hit with the iron pipe, in a way which statements by witnesses could not as accurately portray. Evidence having a natural tendency to establish the facts in controversy should be admitted. “A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury.” People v. Jenko, 410 Ill. 478, 102 N.E.2d 783; Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255; Wilkerson v. State, 170 Tex.Cr.R. 525, 342 S.W.2d 431 and Alcorta v. State, supra, is cited with approval as to a resolution of a disputed fact issue, but we discard the holding as to a bearing on the question of malice.

We think that this Court has inadvertently created some conflicts through its decisions through the years in its opinions dealing with the admissibility of photographs. In this particular case the state urged the admissibility of the photographs on the theory that they showed malice. The state properly cited us among other cases, the cases of Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124 and Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625 in support of its position. We have not only carefully examined our prior holdings in these two cases, but we have also examined the entire field of cases dealing with the admissibility and inadmissibility of photographs. The facts in the Ray case are similar to the case at bar in that a pathologist gave lengthy testimony, detailing an account of the wounds sustained by a 5 year old child, who had allegedly been beaten and stomped by the defendant therein, wherein the defendant contended that the child’s injuries were caused by falls. Photographs were admitted, not for the reason that they tended to solve a disputed fact issue, but they were admitted on the issue of malice and intent. This was a unanimous opinion by this Court in 1954 in which the case of Gibson, supra, was cited by approval.

Gibson, supra, was a murder case from Big Spring in which the death penalty was imposed. Judge Graves wrote the opinion for this Court on appellant’s motion for rehearing in which he complained of certain photographs introduced by the state. Appellant urged in his oral argument that the pictures of the deceased’s body were inflammatory and probably caused the jury to render a verdict of death. The opinion reflects that appellant’s counsel objected to the introduction of these pictures for the reason that no proper predicate had been laid to introduce them since their authenticity had not been properly shown. “It will thus be noted that the objection went only to a verification of the fact that the photographs correctly portrayed the matter which they were supposed to reflect.” Judge Graves then states that the objection was fully met by the state. However, he then outlines the evidence which shows that the appellant did actually create a fact issue, which these pictures would have been admissible to resolve, but he then concludes the opinion by the statement that the pictures were useful to the jury in not only determining an intent to kill, but also on the issue of malice. Actually, what Judge Graves said in the opinion amounts to dicta, as he had previously determined that the pictures were admissible in the absence of a proper objection. However, this case has been cited with approval by various members of this court so many times, including the writer in the opinion written by him for this court in Craig, supra, as authority for the introduction of photographs that it now occupies a place as precedent, rather than dicta, in our jurisprudence.

In Cantrell v. State, 156 Tex.Cr.R. 329, 242 S.W.2d 387, a murder without malice case where the appellant, a deputy sheriff in Nacogdoches County, killed a drunk while trying to arrest him, this court held that two pictures taken of the body of the deceased at the undertaker’s following the homicide were admissible on the basis that “the condition evidenced by the photographs was useful to the jury in not only determining an intent to kill, but also the malice, if any, was shown; and photographs have always been held admissible provided they serve to illustrate any necessary point in the cause.”

Alcorta v. State, supra, was a murder case in which the death penalty was imposed. Appellant killed his wife by stabbing and cutting her with a knife. Five photographs were introduced showing the nude body of the deceased and showing 32 stab wounds on the body. They were admitted over objection that they were inflammatory and prejudicial and had no bearing on the case. There was testimony by the state that there were 32 stab wounds and cuts on the body, but appellant denied that there were 32 cuts, he said: “I did stab her 9 times or so, maybe 15, but not 32.” The opinion states that the record fully sustains the trial court’s qualification certifying that the pictures were allowed to be introduced as bearing on the question of malice in the case and further as bearing on the question of the denial of the defendant that the wounds were on the body of the deceased in the number as represented by the medical officer and the testimony, making a material fact issue on a material issue in the case.

In Whaley v. State, Tex.Cr.App., 367 S.W.2d 703, a murder case with a life penalty imposed, three pictures of the nude body of the deceased and two pictures of the automobile in which he had been seated and which showed large pools of blood were offered in evidence by the state over proper objection. The Court reversed this case in a unanimous opinion, stating that none of these pictures solved any issue in the case, were highly inflammatory and should not have been admitted in evidence. The opinion cited Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178 and Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112.

In Wilkerson v. State, 170 Tex.Cr.R. 525, 342 S.W.2d 431, a murder case wherein the punishment assessed was 99 years, appellant was asked concerning various bruises on his wife’s dead body shown by a photograph. He stated: “She wasn’t bruised like that.” “Q: You say she wasn’t bruised like that?” “A: They didn’t show any bruises like that at all only or. her cheek.” The state established that the photograph and another similar one were identified by the officer who took them as a true representation of the scene; of the body lying on the bed and showing the bruises on the body as he viewed them through the naked eye. The court failed to state exactly the basis for sustaining the trial court in admitting the photograph. To the writer, it is clear that the photograph was admitted because it aided in solving a disputed fact issue; that is, the number of bruises on the body of the deceased. The opinion cites with approval the cases of Gibson, supra; Ray, supra, and Cantrell, supra. The opinion states that Wooley v. State, 162 Tex.Cr.R. 378, 285 S.W.2d 218 and Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740 at best are dicta. Wooley’s case was reversed for failure of the trial court to instruct the jury as to the force and effect of the exculpatory statements contained in the confession but Judge Dice said in a unanimous opinion: “Upon another trial, under the same or similar evidence, the pictures showing the bloody condition of the body of the deceased should not be admitted in evidence in view of their inflammatory nature.”

In Shaver’s case, 162 Tex.Cr.R. 15, 280 S.W.2d 740, in a unanimous opinion by Judge Belcher, the case was reversed because the evidence adduced on motion for new trial showed that a juror, prior to selection, had formed and expressed an opinion. Judge Belcher concludes the opinion by saying; “Appellant objected to a picture showing the body of the deceased at the scene of the crime. We have carefully considered the entire record in the light of appellant’s objection thereto and are of the opinion that, upon another trial under the same or similar evidence, the picture shown in this record of the body should not be admitted in evidence.®

Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314, was overruled to an extent in Judge Woodley’s opinion in Wilkerson, supra. He stated: “If anything said in the Borroum case, supra, may be construed as contrary to the rule stated in Gibson v. State, and Ray v. State, supra, such holding is specifically overruled.” Borroum’s case was reversed in an opinion by Judge Davidson upon the failure of the trial court to grant a special requested charge. Judge Morrison concurred in the reversal because of the introduction into the evidence of a photograph of the deceased.

Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880, a murder case in which a life sentence was imposed, the court reversed the case in a unanimous opinion because the confession was admitted and the trial court did not afford appellant an opportunity to make his proof in the absence of the jury, as to the facts and circumstances surrounding the taking of the confession. The opinion concludes: “The pictures of the body of the deceased depicting the bloody condition of the floor and body should be excluded upon another trial as prejudicial and tending to prove no controverted issue,” citing Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740.

It is abundantly clear to the writer that our opinions are conflicting and in need of clarifying. It seems to the writer that the Court should establish a rule of admissibility of photographs based upon one premise, that premise being that they are admissible if they tend to solve a disputed fact issue. The rule of admissibility to show malice and intent is too broad. Each member of this Court finds himself in the awkward position of “meeting himself coming back” with some of these decisions. We need to decide what to depart from, disclaim or overrule.

After mature and deliberate consideration the writer has concluded that the cases of Gibson v. State, supra; Ray v. State, supra; Cantrell v. State, supra, in so far as they held in homicide cases pictures of the body of the deceased or the scene of the crime where blood is shown, are admissible solely on the grounds that they show malice and intent, are fundamentally unsound and they are hereby overruled. Also, Alcorta, supra, is modified to the extent that it should no longer be regarded as authority for the holding that photographs are admissible as bearing on the question of malice. The view expressed by the majority of this Court in Wilkerson, supra, (wherein we overruled Borroum, supra, to the extent that if anything said in the Bor-roum case may be construed as contrary to the rule stated in Gibson, supra, and Ray, supra) is rescinded.

Finding no reversible error, the judgment is affirmed.

WOODLEY, Judge

(concurring).

I do not agree with the opinion prepared by Presiding Judge McDONALD but concur in the affirmance of the conviction and the holding that the admission in evidence of the pictures did not constitute reversible error.

The learned and experienced trial judge did not err in admitting the pictures under the rule stated in Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124, which followed the holding in Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625, and was re-affirmed in Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112.

Reference to the opinions in the cited cases will reveal that the point of disagreement was not as to the rule, but whether or not there was a disputed issue in the case which the exhibit could tend to solve.

I do not construe any of the cases which have come to my attention as holding that a gruesome and inflammatory picture is admissible in a murder case simply because the indictment alleges malice and the picture may be of assistance to the state in ■obtaining a verdict of murder with malice. If there be a case which so holds, I agree that it should be overruled.

I understand the rule to be that a picture, though gruesome and inflammatory, is admissible if it serves to illustrate a disputed issue, whether it be the nature of the wounds, intent to kill, the issue of whether the killing was with malice or without malice, or was voluntary rather than excusable or justified, or any other material disputed issue.

The pictures were admitted on the disputed issue of whether the killing was upon malice, as charged, or was without malice. Such disputed issue was submitted to the jury in the court’s charge, in accordance with Art. 1257c, Vernon’s Ann.P.C. That the pictures were inflammatory, or that the state introduced other evidence on the disputed issue does not alter the rule. The trial judge was not in error in concluding that the pictures were admissible as tending to solve a disputed issue.

MORRISON, Judge

(dissenting).

While I agree with my brother McDON-ALD that this Court, including the writer in his early opinion prepared for the Court in Cantrell v. State, supra, (1951), 156 Tex.Cr.R. 329, 242 S.W.2d 387, has been far from consistent in our holdings concerning the admissibility of pictures of the scene of the crime where blood abounds and of the body of the deceased in murder cases are shown. I further agree that malice is no proper predicate for the introduction of such pictures in cases where death does ensue, but I am still unable to agree to the affirmance of this conviction. I have examined this record with care to determine if the introduction of the pictures might be justified by appellant’s testimony, but have failed to find therein sufficient justification for the- admission of these lurid and ghastly pictures of this deceased almost completely decapitated. In fact they show the work of an imperfectly functioning guillotine.

At the time the colored pictures were admitted the testimony of the pathologist had not been challenged nor had he been vigorously cross examined. He had testified that the deceased had sustained four fatal wounds including the neck wound which left “ * * * the head literally hanging loosely, attached only to the back side; the front side was completely severed.” In addition to this Officer Klevenhagen had testified, without any attempt on the part of the defense to refute it, that deceased’s “ * * * throat was cut from ear to ear. It was barely holding his head on * * * The only thing that held his head on when we put it on the stretcher is that I had to take my hand and hold it, to keep it from falling off the body.” Appellant had admitted that he had cut the deceased prior to the introduction of the pictures.

It must be remembered that we do not have here just another witness describing the condition of the body of the deceased, but are here dealing with another medium of proof. These are colored and black and white photographs handed to the jury just before they retired to decide whether or not this appellant should live or die, which photographs would make the producers of the Frankenstein films hang their heads in shame. These photographs shed no light upon any disputed issue in this case which had been fully developed to a point where no rational jury would acquit and served the sole purpose of shocking the jury so deeply that they were rendered incapable of exercising cool reflection in deciding whether life imprisonment or death would be the proper punishment.

I respectfully dissent.

On Appellant’s Motion for Rehearing

DICE, Commissioner.

We have again examined the record and the majority remain convinced that the court did not err in admitting in evidence the photographs of the deceased’s body and of the appellant.

The pictures showing the nature and location of the wounds on the deceased’s body and the bloody hands of appellant clearly tended to solve disputed issues in the case.

We have also examined the record in the light of appellant’s contention that the judgment should be reversed because the body of the deceased was not sufficiently identified as the person charged to have been killed, as required by Art. 1204, Vernon’s Ann.P.C.

The indictment charged that appellant killed Jessie J. Odum.

W. H. Perkins, the first witness called by the state testified that on the night of the killing he saw appellant with a person whom he knew by the name of “Jessie,” and who he later learned was Jessie Odum. He further testified that the next time he saw Jessie Odum he was lying, dead, on a slab at Ben Taub Hospital, with his throat cut and three slashes across the chest.

Deputy sheriffs Klevenhagen,. Deckman, and Knowles, throughout their testimony, referred to the dead- body found at the scene as that of Jessie Odum.

The testimony was sufficient to identify the deceased as the person charged to have been killed.

The motion for rehearing is overruled.

Opinion approved by the court


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Emma May THOMASON, Appellant, v. The STATE of Texas, Appellee.
    No. 37078.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Rehearing Denied April 21, 1965.

      Percy Foreman, Houston, King C. Hay-nie, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted under Art. 802c, Vernon’s Ann.P.C., of murder without malice and her punishment assessed at confinement in the penitentiary for two years.

The indictment in two separate counts charged appellant with the offense of murder without malice. Only the first count, which charged murder without malice under the provisions of Art. 802c, supra, was submitted to the jury.

The evidence was undisputed that, on the date alleged, the appellant, while driving her Pontiac automobile west on Sunnyside Street in the city of Houston, was involved in a collision around S p. m. with a motorcycle on which the deceased and another boy were riding. The collision occurred after appellant’s automobile had entered the intersection of Sunnyside and McGallion Streets, when it was struck on the right side by the motorcycle driven by the deceased, who was traveling south on McGallion.

It was undisputed that the deceased was killed in the collision and that appellant had been drinking.

Numerous state witnesses, including police officers who observed appellant at the scene of the collision, -testified that she walked in a staggering manner, smelled strongly of alcoholic beverages, talked with a thick tongue, and they expressed their opinion that she was intoxicated. It was further shown that a blood sample taken from appellant, with her consent, about an hour and twenty minutes after the collision, contained .146% alcohol by weight. Chemist Robert F. Crawford, who made the analysis of the blood sample, testified that a person with such percentage of alcohol in the blood would be intoxicated.

Testifying in her own behalf, appellant admitted having consumed two bottles of beer prior to the collision but denied that she was drunk. Witnesses were also called by her who supported her claim of sobriety.

Testimony was offered by the state to the effect that appellant’s automobile entered the intersection without stopping at a stop sign on Sunnyside Street. There was no stop sign at the intersection on Mc-Gallion.

Appellant swore that she did stop for the stop sign. She also called a witness who testified that he observed her car stop at the sign.

The jury, by their verdict, resolved the disputed issues against appellant, and we find the evidence sufficient to sustain the verdict.

Appellant insists that she cannot be convicted of murder without malice under Art. 802c, supra, because it is not a murder statute and does not provide that a conviction thereunder shall be for murder without malice.

Art. 802c, supra, as enacted by the 47th Legislature in 1941, provides as follows:

“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley or any other place within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, and while so driving and operating such automohile or other motor vehicle shall through accident or mistake do another act which if voluntarily done would be a felony, shall receive the punishment affixed to the felony actually committed.”

In giving application to this statute it has been the holding of this court that in enacting Art. 802c, supra, it was the purpose of the legislature to make applicable to the misdemeanor offense of drunken driving the elements of accident or mistake contained in Art. 42, V.A.P.C., and that under such statute (Art. 802c, supra) a conviction for murder without malice can be sustained. Fox v. State, 145 Tex.Cr.R. 71, 165 S.W.2d 733; Simmons v. State, 145 Tex.Cr.R. 448, 169 S.W.2d 171; Johnson v. State, 153 Tex.Cr.R. 59, 216 S.W.2d 573; McCarthy v. State, 153 Tex.Cr.R. 149, 218 S.W.2d 190; Greiner v. State, 157 Tex.Cr.R. 479, 249 S.W.2d 601 and McKee v. State, 168 Tex.Cr.R. 604, 330 S.W.2d 434.

We adhere to such holdings and overrule appellant’s contention.

In her brief, appellant makes certain complaints to the court’s charge which she urges as fundamental error. No objections to the charge were made by appellant in the trial court, nor were there any requested charges presented by her.

We have carefully reviewed the charge given by the court and find no fundamental error.

In his charge, the court instructed the jury with reference to the provisions of Art. 802c, supra, and submitted to them the issue of appellant’s guilt of murder without malice under the allegations of the indictment.

Under the court’s instruction, the jury were instructed to convict appellant of murder without malice if they found from the evidence beyond a reasonable doubt that while intoxicated and while driving her automobile upon a public highway she did by accident or mistake kill the deceased by driving said automobile into or causing it to collide with the motorcycle being ridden by the deceased, thereby injuring the body of the deceased, from which injuries the said deceased died.

The jury were further instructed that although they believed from the evidence beyond a reasonable doubt that appellant, while intoxicated and while driving her automobile upon a public highway, did through accident and mistake kill the deceased, they could not convict appellant unless they found “from the evidence beyond a reasonable doubt that such intoxication, if any, or being under the influence of intoxicating liquor, if any, caused the collision, if any, or contributed to same, or was a causal factor in causing the death of the said Jack Ray Weatherly, if it did cause his death.”

The charge adequately presented to the jury the issue of appellant’s guilt, under the evidence.

We do not agree, as urged by appellant, that the court committed fundamental error in instructing the jury to convict her if they found from the evidence that she killed the deceased through accident or mistake, because there was no evidence that the killing was through mistake. The words, “mistake” and “accident” as used in the statute, mean “unintentional” and are often used in connection with each other and are interchangeable. Johnson v. State, supra.

Nor do we agree that the court committed fundamental error in failing to charge on the question of appellant’s guilt of negligent homicide in the second degree. Under Art. 802c, supra, it is a felony for an intoxicated driver of an automobile to kill another person by accident or mistake and, being a felony, such crime cannot be prosecuted as the misdemeanor offense of negligent homicide of the second degree. Jones v. State, 160 Tex.Cr.R. 640, 274 S.W.2d 400; Munoz v. State, 162 Tex.Cr.R. 331, 285 S.W.2d 729.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Stanley WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 37690.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.
    M. Herbert Oldham, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder with malice; the punishment, five years.

The indictment alleged that appellant voluntarily and with malice aforethought killed Martin Garlaska by shooting him with a pistol.

The jury rejected appellant’s plea of self-defense and accident and his plea for suspended sentence.

The offense of assault with intent to murder was submitted to the jury, coupled with instructions to acquit appellant of murder if they had a reasonable doubt that the injury inflicted upon the deceased by shooting him with a pistol caused his death.

The undisputed evidence shows that appellant shot the deceased in the back with a pistol. The sufficiency of the evidence to sustain the jury’s finding that the shot was fired voluntarily, and not in self-defense, is not challenged.

The shooting occurred at the Oyster Bar on May 12, 1961. There was evidence that a few hours earlier at Rich’s Club, the deceased was assaulted and beaten by appellant.

There is also evidence to the effect that the deceased was stomped or received a blow in the abdomen.

Dr. William L. Sheehan, whose qualifications as a licensed physician were stipulated and who attended the deceased from July 1 to his death on July 19, 1961, at the Veterans Hospital in Houston, testified that in his opinion: “ * * * Martin Garlaska died of a gastro intestinal hemorrhage from an ulcer that had been produced by his injury occurring some two months prior to his death.”

He further testified, in part:

“Q. * * * without the gunshot wound in question, in your opinion, would this man have died from this bleeding gastric ulcer, would the ulcer have come about?
“A. Without the injuries sustained there would have been no precipitating stress to produce the ulcer.”

On cross-examination:

“A. If I might quote my summary. History of the patient. Patient after his arrival indicated that he was shot by an unknown assailant and then stomped in the abdomen. Patient stated that he did not know his assailant and had never seen him before or since.”

On re-direct examination:

“Q. Doctor, you filled out as part of your report there — you filled out the death certificate and as related in your initial testimony the series of steps — you got a series of steps that in your opinion caused his death?
“A. Well, the immediate cause was bleeding.
“Q. All right. Gastrointestinal hemorrhage ?
"A. From his ulcer.
“Q. * * * Which you said was due to what?
“A. Debilitation and malnutrition.
“Q. Which, in turn, you said was due to what?
“A. The gunshot wound and the abdominal trauma.
"Q. Both?
“A. Both.
“Q. Absent the gunshot wound it would have been unlikely he would have died from—
“A. Well, absent the gunshot wound if this man perforated an intestine symptoms of this would have been manifest within minutes.
“Q. In your opinion, doctor, to sum it up; you say that definitely a man with a wound of this nature knowing that he was paralyzed would have severe emotional stress?
“A. Correct.
“Q. Which would be a contributing factor to the gastric ulcer which ultimately resulted in killing him?
“A. Right.
******
“A. He died from the bleeding ulcer.”

The gunshot wound was described by Dr. Jack Orrick, Jr. who attended the deceased from May 12 to May 25, 1961, when he was transferred to the Veterans Hospital in Houston, as: “ * * * an entrance wound of a bullet or a missile on the back area just to the right side of his left shoulder blade. * * * the right side of the chest * * * was full of either air and or blood. There was a second exit-type wound in the right chest at about the level with the third rib just on the front lateral part of the chest, * * * ”

Dr. Orrick further testified:

“Q. What was the initial procedure there at the hospital as to whether any exploratory surgery was done or what was done there that night?
“A. The first thing we did after starting his * * * transfusions and getting set up to replace his blood loss, I put a chest tube into the right side of the chest in the emergency room and over of a period of our observation down there in the emergency we pulled off into the chest tube approximately two quarts of blood out of the right side of his chest. There was evidence that the bleeding was continuing from that side of the chest as the level of the bottle kept rising. It was on the basis of these injuries we were going on ahead to open the chest at that time. Now in our further examination down in the emergency room it was noted that he was not moving either of his lower ex-tremeties, his legs, and then in checking up and down we found that there was no sensation at all and no movement at all below the level of approximately the third rib of the chest. There was no movement in either leg and no sensation below the upper part of the chest. So, we were afraid there had been damage to the spinal cord at a high level. We took him to surgery after he had gotten out of shock initially and opened the right side of his chest. We found that the upper lobe of the right lung was pretty well splintered — a two-inch wound on one surface and three inches on the other, and then there were fragments of the body vertebrae or the backbone around the third and fourth backbone, which had been driven into the right lung itself. We removed approximately another quart of blood from the right side of the chest. We took the bone fragments out of the right lung, controlled the bleeding and repaired the right lung and drained the chest and closed it. Then at that point we turned him over and Dr. Faulk, Dr. Ed. Faulk, then did a maninectomy or made an incision of the upper part of the chest over the vertebrae and we went down to the spinal cord in the area of the injury to see if there was anything correctible. The track of the missile was found to have passed directly through the spinal cord; it had essentially destroyed the spinal cord at the third and fourth level completely. So, other than the removal of the bone fragments and some blood clots there was nothing further that we could do at that time.”.

On cross-examination:

“Q. And a gastric ulcer would not have been caused by the bullet wound, would it ?
“A. You mean immediately?
“Q. Yes, sir.
“A. Not immediately, no. Of course, if you want to project it out into a period of time you can produce ulcers, can and frequently do, as a result of massive injury, massive producing shock, steroid cortisone usage can produce ulcers of the stomach.
“Q. But that’s over a period of time ?
“A. This will develop generally during the time of treatment.
“Q. Over how long a period, doctor?
“A. It can appear in a few days.
He if; ‡ sjc #

On re-direct:

“Q. Now you said in this cross-examination that a massive injury of this type can and frequently does produce gastric ulcers in a patient that has suffered such a massive injury as this patient suffered?
“A. This condition — what we run into, what we call stress ulcers, and this is the type thing that we were speaking about or leading into — a person who either has been critically injured or has critical illness, even, they will — they are in very dire straits, certainly one who has been in shock or infection and under a lot of steroid cortisone treatment, all of these things can produce ulcers in the intestinal tract and we get into that every once in a while, yes, sir.
“Q. As to the peritonitis and gangrene, you have stated that was not directly, in your opinion, the — connected with — that is, not directly connected, caused by the bullet wound?
“A. No, sir. The bullet did not cause that, no, sir.

There is evidence to the effect that the deceased died of a gastro-intestinal hemorrhage from an ulcer caused by physical injuries, psychological shock and severe emotional stress from deceased’s awareness -of his injury and his paralysis, which resulted from the gunshot wound, and that the gunshot wound could have been and probably was a contributing factor to the peritonitis-gangrene in the lower colon in that the patient’s paralysis caused by the gunshot wound rendered an early detection and prevention of the condition impossible, thereby allowing it to become very serious before it was detected.

Appellant challenges the sufficiency of the evidence to sustain the allegation of the indictment that appellant killed Martin Garlaska by shooting him with a pistol. His position is that the state failed to negative the probability that the deceased was “traumatized” by being “stomped in the belly” causing peritonitis which in turn brought about the bleeding ulcer.

Art. 1201 P.C. provides: “ ‘Homicide’ is the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.”

Art. 1202 P.C. provides: “The destruction of life must be complete by such act, agency, procurement or omission; but although the injury which caused death might not under other circumstances have proved fatal, yet if such injury be the cause of death, without its appearing that there has been any gross neglect or manifestly improper treatment of the person injured, it is homicide.”

The destruction of life must have been occasioned by the act of appellant, but appellant is responsible if his act of shooting contributed to the death, though there were other concurring causes. Tomerlin v. State, Tex.Cr.App., 26 S.W. 66; Rhodes v. State, 39 Tex.Cr.R. 332, 45 S.W. 1009; Ex parte Pettis, 60 Tex.Cr.R. 288, 131 S.W. 1081.

If the act of the defendant alleged in the indictment contributed to the death of the deceased he is responsible though there were other concurring causes. 29 Tex.Jur. 2d, Sec. 67 and 68. See also Adams v. State, 150 Tex.Cr.R. 431, 202 S.W.2d 933.

As we view the evidence, there is none which would warrant a finding that Martin Garlaska died from causes arising independent of the gunshot wound and the evidence refutes any suggestion of neglect or improper treatment. On the other hand, the evidence is deemed sufficient to show that the gunshot wound, which severed the spinal cord and resulted in paralysis of the lower part of the body, was a cause and factor in all of the complications and a moving and efficient cause of death. See Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404; Hill v. State, 108 Tex.Cr.R. 489, 1 S.W.2d 639; Franklin v. State, 137 Tex.Cr.R. 136, 128 S.W.2d 389; Wilson v. State, 136 Tex.Cr.R. 590, 126 S.W.2d 977; Grayson v. State, 106 Tex.Cr.R. 251, 291 S.W. 908; Wilson v. State, Tex.Cr.App., 24 S.W. 409; Moore v. State, 126 Tex.Cr.R. 391, 71 S.W.2d 531; Duque v. State, 56 Tex.Cr.R. 214, 119 S.W. 687; Embrey v. State, 94 Tex.Cr.R. 591, 251 S.W. 1062.

Edge v. State, 144 Tex.Cr.R. 480, 164 S.W.2d 677, does not sustain appellant’s contention to the contrary. In that case there was evidence of an independent cause of death.

The judgment is affirmed.


author: DICE, Commissioner. WOODLEY, Judge

text:
    Allen L. COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 37686.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.
    F. T. Gauen, Jr., Nallas, Payne Roye, Graham, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, twenty years.

The state’s evidence shows that on the day in question the appellant was at a cedar cutters’ camp located on Conner Creek in the southeast part of Young County. Around 1 p. m., the deceased, twenty-two years of age, and three other young men drove to the creek in an automobile and stopped on the opposite side from the camp. The deceased and his companions began drinking beer and during such time some of them exposed their private parts in such manner that they could be seen by those present at the camp, including a mother and daughter. When one of those present at the camp began shooting a .22 rifle at some cans, one of the members of the deceased's party hollered across the creek and referred to the person doing the shooting as an s. o. b. An invitation was also issued for the person doing the shooting to come across the creek. In response to the invitation, the appellant, his son, and three others staying at the camp crossed the creek in a boat and went ashore to where the deceased and his companions were, at the automobile, armed with sticks and clubs. A fight ensued and when the deceased ran around the front of the automobile he was thrown to the ground by Charles Dahl, a member of the appellant’s party. While the two were on the ground, appellant came to where they were struggling and then walked away. Blood was then seen on the deceased and Dahl got up and accompanied appellant and his other companions back to the camp across the creek. After arriving at the camp, appellant, in talking to his son, stated: “ T guess that taught him a lesson. I don’t guess them S.O.B.’s will be coming back down here.’ ”

It was further shown that the deceased was left lying on the ground by his three companions, who fled in the automobile but later returned to the scene. When they returned, the deceased was on the ground and they proceeded to take him to a hospital, where he was pronounced dead upon arrival by Dr. R. G. McDaniel.

Dr. McDaniel testified that the deceased had a puncture wound in the left upper thigh, approximately one to one and a half inches deep, which could have been made with a knife, and that the cause of death was the knife wound and loss of blood.

The state’s proof further shows that when Sheriff John Edwards went to the scene to investigate the killing, in talking with appellant the appellant gave the sheriff a knife, saying that it was the knife he “used on that boy.” It was further shown that the knife was not, in fact, the knife used by appellant in stabbing the deceased but belonged to appellant’s son and that the knife used by appellant in the stabbing was given by him to his son after they returned to the camp. This knife the son hid and was later found and introduced in evidence.

Testifying in his own behalf, appellant stated that when he and his companions went across the creek they were met by the deceased and the other three boys, who were armed with sticks or clubs; that when he told one to throw down a stick the boy kicked appellant in the stomach, knocking him out and causing him to fall to the ground; that when appellant got up he was “goofy” and had his knife in his hand and ran into the boy, who fell down, and “I grabbed him by the right leg and picked it up and stabbed it.” Appellant further swore that he had no intent to seriously injure anyone, and that on his way back across the creek in the boat he washed the blood off his knife. He further swore that he did not purposely give the sheriff the wrong knife and that the reason he did was because his son had swapped knives with him after the stabbing.

The court in his charge submitted to the jury the issue of appellant’s guilt of both murder with and without malice and also of aggravated and simple assault.

By their verdict the jury rejected appellant’s explanation of the killing.

We first overrule appellant’s contention that the evidence is insufficient to support the judgment of conviction because there is no proof of any intent to kill. The evidence shows that appellant stabbed the deceased and left him on his knees in a dying condition and hollering “Don’t leave me. Come back and get me.” After returning to the camp, appellant began filing an axe while the deceased was lying on the ground across the creek in plain sight. Such facts are sufficient to support a finding by the jury of intent to kill. See: Harris v. State, Tex.Cr.App., 370 S.W.2d 886.

We shall next discuss certain claimed errors urged by appellant in his brief and in oral argument as grounds for a reversal of the conviction.

Among the witnesses called by the state were Charles Dahl and Jerry Minter, two of appellant’s companions who accompanied him across the creek and witnessed the killing. Each witness had testified before the grand jury, and Minter had also made a written statement to the district attorney. During their examination by the district attorney, both witnesses were interrogated with reference to their testimony given before the grand jury. When such written testimony was exhibited to them, both admitted that certain testimony which they had given at the trial was inconsistent with their testimony before the grand jury. Minter also admitted that some of his testimony was contrary to his written statement made to the district attorney after the killing.

Under the record, we find no reversible error in the manner in which the witnesses were impeached by the district attorney and the only serious question presented relates to the court’s action in refusing appellant’s request to inspect the witness Dahl’s grand-jury statement for the purpose of cross-examination.

While under the holdings of this court in Sewell v. State, 367 S.W.2d 349, and cases there cited, appellant was entitled to the statement, we find no reversible error, in view of the fact that before the trial was concluded, both Dahl’s and Minter’s statements were tendered to appellant for the purpose of cross-examination of the witnesses, who were still available for examination. The record further reflects that appellant did examine the witness Minter from the witness’s written statement before the grand jury.

The court’s failure to limit in his charge the jury’s consideration of the witness Dahl’s testimony before the grand jury to the matter of impeachment does not, under the record, present reversible error. No objection was made by appellant to the charge, nor was any request made that the court limit the jury’s consideration of the testimony.

In his brief, appellant complains that reversible error was committed when Sheriff Edwards was permitted to testify that appellant declined to take a lie detector test.

No objection was made by appellant to the testimony and under the record he is in no position to complain. See: 5 Tex.Jur.2d 61, Sec. 39, and cases there cited.

It is also contended that the court erred in permitting Deputy Sheriff Casey to testify that he took Willie Ray Cook and the witness Charles Dahl to Wichita Falls for a lie detector test and after taking the test they accompanied the officer to the camp where the knife used by appellant in the killing was found hidden in some leaves and the murder charge was then' filed against him.

While the matter of taking a lie detector test should not have been gone into, we perceive no reversible error, in view of the admission in evidence of the knife without objection and appellant’s admission in his testimony that it was the knffe used by him in killing the deceased.

Numerous ether errors are urged by appellant to certain questions and statements made by the district attorney during his examination of the witnesses. Error is also urged to certain testimony of the witnesses.

An examination of the record reflects that no objection was made by appellant except in one instance when the objection was by-the court sustained, and in another instance when no ruling by the court was obtained on the objection. Under such record no error is presented.

Error is also urged to certain comments made by the court in his ruling on the admissibility of evidence. No objection appears to have been made by appellant to such comments. Therefore, nothing is presented for review.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.

WOODLEY, Judge

(dissenting).

Under the authority cited, the appellant was entitled to inspect the document used in the jury’s presence to refresh the memory of the witness, or to lay a predicate for impeachment, at the time of his request.

That appellant was permitted to see the grand jury testimony of the Witness Dahl long after his lengthy examination was completed, and after other witnesses had testified and the state was ready to close, without any further request or demand for such inspection was not a compliance with the rule followed as recently as February 17, 1965, in Walton v. State, Tex.Cr.App., 386 S.W.2d 805, that reversal will result without any showing of injury for the denial of defendant’s timely request that he be permitted to inspect any document, instrument or statement used in some way before the jury, such as in questioning a witness.

Appellant’s request was timely. The leave to inspect was not.

I respectfully dissent.


author: BELCHER, Commissioner.

text:
    George Emerson (Red) GRAY, Appellant, v. The STATE of Texas, Appellee.
    No. 37263.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Rehearing Denied April 21, 1965.

      Arthur L. Lapham, Victoria, Percy Foreman, Houston (On Appeal Only), King C. Haynie, Houston (On Appeal Only), for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder without malice; the punishment, five years.

The evidence of the state reveals that a football game, played in the afternoon, was viewed on television by several persons in a motel room. When all had gone except the appellant, the witness Broadwater, and the deceased, the appellant and Broadwater were trying to get the deceased, who was drunk, to leave, but the deceased had begun insisting on scuffling with the appellant. The deceased had come to the motel with Broadwater in the latter’s ear. Appellant’s automobile and Broadwater’s were parked a few feet apart in front of and facing the room in which the game had been viewed.

The appellant and deceased left the room and went to appellant’s car, which the appellant entered on the driver’s side. The deceased, still insisting on scuffling, forced his way into the car, also on the driver’s side, and began getting rough with appellant. When the deceased declined to get out, the appellant, by using his knife, caused him to leave the car, the deceased saying “You are not going to cut me.” Then as the deceased pinned him against the car door, the appellant grasped a hammer handle from under the seat and struck the deceased. The deceased took the handle away from appellant, and struck him several times, injuring the appellant. Then the deceased, carrying the handle, walked around to his right in front of appellant’s car and walked in front of and to the other side of Broadwater’s car, got in it on the passenger side, and closed the door.

While the deceased was going around to Broadwater’s car, the appellant got out of his car on the driver’s side, then he got back in the front seat on his knees, reached behind the front seat and get a shotgun. After getting the gun, he began walking around the front of his car, while making motions as if he were loading the gun, and he was angry and cursing the deceased. As the appellant, cursing and' saying he would shoot him, walked in front of his ear with the shotgun pointed toward deceased, the deceased jumped out of Broadwater’s car, closed the door, and stood beside the right front door. Then the deceased went to the rear of Broadwater’s car and around on the left side by the center of the left wheel and remained there. While the deceased was moving around by the left wheel, the appellant walked back to the driver’s side of his own car and'-returned to the front, with the shotgun pointing toward the deceased. At this time, the appellant and deceaséd were about six or seven feet apart, and appellant raised the shotgun, thrust it forward with the muzzle about twelve to twenty four inches from deceased’s face, and it discharged, shooting the deceased m the mouth and causing his death.

Testifying in his own behalf, the appellant stated that after deceased struck him with the hammer handle, he got his shotgun from the back seat, told deceased to get in the car (Broadwater’s) and leave, and appellant walked around in front of his (appellant’s) car. He started his motor, intending to leave but when the motor faltered, deceased returned, apparently to prevent appellant from leaving. Appellant again got the shotgun, which he testified he “knew” was unloaded, and the deceased began backing up, waving the hammer handle in his hand. When appellant was in front of his car, the deceased was standing near the right front fender waving the handle, and as the deceased leaned toward him he jabbed him in the face with the shotgun and the gun fired, hitting deceased in the face. Appellant further stated that he thought the deceased was going to hit him with the handle, and he had the shotgun to beat him off, and he hit him with the barrel to “get him loose” from the handle; that he did not pull the trigger, and that a defective slide caused the gun to discharge; that he did not intend to kill the deceased, but he was afraid the deceased would seriously injure him. Appellant also testified that he never saw the deceased get in Broadwater’s automobile.

The court charged the jury on the law of self-defense and also on accident.

In connection with the law of self-defense the court also charged the jury on the law of abandonment of the difficulty by the deceased.

Appellant contends that the trial court erred in charging the jury on the law of abandoning the difficulty for the reason that the issue was not raised by the evidence.

The state’s evidence reveals that after the deceased took the hammer handle from the appellant, he, the deceased, walked around to the left front of- appellant’s car in the general direction of the motel room, and on to the right in front of Broadwater’s car to the other side of the car, got in the car and dosed the door. According to the state’s evidence, the deceased did nothing further, until he saw the appellant in front of his (appellant’s) car with a shotgun pointed toward him, cursing and saying he would shoot him, and the deceased jumped out of the car and stood beside it, facing the appellant. This evidence raised the issue of the abandonment of the difficulty, therefore it was not error to submit it to the jury. 4 Branch (2) 478, Sec. 2145.

By formal bill of exception, appellant complains of the action of the trial court in permitting the witness Jerry Casparis, a brother of the deceased, to remain in the courtroom and advise and assist counsel for the State in the selection of the jury. To support this contention he takes the position that his defense of accident was probably his strongest defense, which was supported by his testimony that the shotgun would sometimes accidentally discharge. The testimony of the state’s witness Cas-paris contradicted that of appellant on the defense of accident. Casparis testified before the jury that during the times he hunted with the appellant the shotgun showed no malfunction or trouble with the safety, shell feeder, or ejector, nor did it discharge accidentally.

The bill as qualified recites that after objection by the appellant, the witness Casparis sat outside the rail with the spectators; that during the voir dire examination of the jury the state’s attorney from time to time, outside the rail, conferred with Casparis and others outside the rail as well as members of the court inside the rail; that there was no audible conversation between the state’s attorney and Casparis, and no improper conduct by either; that Casparis knew only two prospective jurors by name, and there was no showing that either served on the jury or that any chosen juror knew the ’ witness Casparis or the deceased.

The district attorney served a six county district, and he did not live in the county !n which the offense occurred or was tried.

No error is reflected in the bill.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Ex parte Martin GUERRERO, Jr.
    No. 38128.
    Court of Criminal Appeals of Texas.
    April 7, 1965.
    Theo. Pat Henley, Jack Paul Leon, San Antonio, for appellant.
    James Barlow, Dist. Atty., John G. Benavides, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order of Judge John F. Onion denying bail following the return of an indictment charging murder with malice. The deceased, a long time employee of a supermarket, went to the National Bank of Commerce in San Antonio on the morning in question and secured in excess of five thousand dollars in change, much of it in coins and contained in bags bearing the name of the bank. On his way back to the store and while his automobile was stopped at a signal light, an automobile driven by appellant bumped into the rear of his automobile, after which appellant and his passenger approached the deceased’s automobile. Appellant was seen to make motion toward his passenger and say something to him and his passenger forced deceased from under the wheel and drove off in deceased’s automobile with deceased seated with his head resting on the dash board. Appellant then immediately returned to his automobile and followed deceased’s automobile as it was driven away. A short while thereafter appellant turned over to Hernandez two beer cases, each weighing approximately one hundred pounds, containing money bags bearing the name of the National Bank of Commerce and instructed him to take care of the money for him and told him, “The less you know, the 'better it is for you.” Later in the day appellant left the automobile which he had been driving that morning at a garage with the instructions to remove the trunk lid or turtle so that he might substitute another therefor. This automobile bore no license plates, but the Michigan plates which had been seen earlier on the automobile were found concealed in the trunk.

No testimony of a defensive nature was offered at the hearing.

We have concluded that the above circumstantial evidence is sufficient to make this a non-bailable case. The judgment remanding appellant to custody without bail is affirmed.


text:
    Bennie Earl SIMS, Appellant, v. The STATE of Texas, Appellee.
    No. 38094.
    Court of Criminal Appeals of Texas.
    April 7, 1965.
    Charles R. Wheeler, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced under Art. 63 P.C., life.

The indictment alleged the burglary of a house belonging to M. L. Suggs, with intent to commit theft. A prior conviction for burglary in 1959 and another in 1961 were alleged.

A Gulf Service Station in Fort Worth operated by M. L. Suggs was burglarized on the night of August 20,1964. Entry was made by breaking a window and a money bag containing some $30 in money and credit invoices, a wrist watch, cigarettes and some coins from a cigarette vending machine were taken.

Mr. Suggs closed his business place about 9 o’clock P.M.

Vaughan Ray, Bobby Brown and Charles Wells drove by the service station sometime after midnight, heard the sound of breaking glass. They saw a man .sitting at the wheel of a parked car some 60 to 70 feet from the window of the service station and a man at the window. They obtained the number of the car and notified the police.

Police officers located the car, stopped and searched it.

Appellant was in the front seat of the car. Henry Banks was driving and Bill Gomez was lying on' the back seat.

The property missing from the service station was found in the car and was returned to its owner.

Appellant denied that he had the wrist watch on his arm, as the officer testified; denied that he had any part in the burglary or that he had knowledge that the property was in the car or that a burglary had been committed prior to the time the officers stopped the car.

The allegations relating to the prior convictions were proved and were admitted by appellant in his testimony.

Appellant’s claims for reversal are bottomed upon the trial court’s failure to accept his offer to stipulate before the court in the jury’s absence such previous convictions. He contends that the trial court committed prejudicial error (1) in overruling his motion to quash the jury panel because the state had alluded to the prior felony convictions during jury examination after he had offered to stipulate to such convictions in open court; (2) in refusing to allow him to stipulate to the prior felony convictions outside the presence of the jury; (3) in allowing the district attorney to read the allegations as to the prior convictions to the jury after he had offered to stipulate; (4) in admitting the exhibits and evidence to prove that he had been previously convicted as alleged in the indictment after he had stipulated to such fact outside of the presence of the jury.

Reliance is had upon pronouncements in recent opinions of this Court which sanction the procedure under which a defendant who has been previously convicted of a felony, or felonies which are alleged in the indictment for the purpose of enhancing the punishment under Article 62 or 63 P.C. may waive the reading of such portion of the indictment and admit the truth of such allegations, in which event the state should not be allowed to introduce evidence which might result in prejudice to the defendant. Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex parte Reyes, Tex.Cr.App., 383 S.W.2d 804; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253.

We reaffirm our approval of the practice of allowing the defendant to remove any possible prejudice by stipulations and waiver in advance of trial which make it unnecessary that the jury be informed of his prior convictions by reason of which the applicable punishment is definite and need not be assessed by the jury.

It does not follow that the trial court erred reversibly or that we have departed from our holding that the reading of the indictment and proof of the allegations as to prior convictions alleged for enhancement does not constitute a violation of due process. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, cert. denied, 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661; Breen v. Beto, 5 Cir., 341 F.2d 96.

The trial court’s failure to accept appellant’s offer to stipulate in the jury’s absence as to the prior convictions resulted in no harm or prejudice to appellant.

Appellant testified as a witness in his own behalf. His prior convictions for felonies then became admissible as affecting his credibility. McDonald v. State, Tex.Cr.App., 385 S.W.2d 253; Crocker v. State, Tex.Cr.App., 385 S.W.2d 392. On his direct as well as his cross-examination, appellant admitted the prior convictions alleged in the indictment.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Jesse James JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 37878.
    Court of Criminal Appeals of Texas.
    April 7, 1965.
    Wardlow Lane, Center, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Our prior opinion is withdrawn, and the following substituted:

The conviction is for aggravated assault with a motor vehicle, by negligence; the punishment, a fine of $25.

The complaint and information upon which appellant stands convicted are fatally defective, because the act or acts relied upon to -constitute negligence are not alleged, as required by Art. 408a, Vernon’s Ann.C.C.P. Scott v. State, 171 Tex.Cr.App. 53, 344 S.W.2d 457.

For such reason, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the court.


text:
    Betty Yates VAN SKIKE, Appellant, v. The STATE of Texas, Appellee.
    No. 37678.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied April 7, 1965.

      Bill Schlomann, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 10 years.

Alice Killingsworth, who had resided immediately next door to appellant for a short time, but did not know her, testified that she was awakened about midnight on the night in question by noises coming from appellant’s home, that she heard male and female voices and that she then heard a shot fired. She stated that shortly thereafter she heard an automobile drive up and a man’s voice say “at least he’s not dead”, and that it was an hour or an hour and one-half later that the police and ambulance arrived.

Officer Reed testified that he received a call at 1:51 a. m. on the morning in question, proceeded to appellant’s house, found a man’s body in the garage, knocked on the door and was admitted by appellant, who in answer to his question as to what the trouble was, replied “she had shot Johnnie Mead” and “he’s out in the garage” and then took him inside where she pointed to a pistol on the kitchen table. Seated at the table were Mr. and Mrs. Cauley smoking cigarettes. He testified that Homicide Detective Rockwell arrived shortly thereafter.

Officer Rockwell testified that he arrived upon the scene, checked the body, found it to be cold with no “pulse”, took appellant in custody and shortly thereafter, after having been duly warned, appellant made a written statement. Parts of this statement were introduced by the State over the sole objection that the proper predicate had not been laid for its introduction. Appellant then introduced the previously deleted portions thereof. Both portions will be summarized together.

The confession recited that appellant was separated from her husband and had known Johnnie Mead for more than two years and had been going with him, but that their relationship had not been entirely harmonious, and that Johnnie had on one occasion kicked her in the head, causing an injury for which she was hospitalized. It further recited that on the afternoon of the day in question she had met Johnnie at a tavern and had an argument with him and they had separated, that she and the Cauleys went to her home from a tavern at midnight and that shortly thereafter* Johnnie Mead called and wanted to come over, but that she told him she did not want him to come. It further stated that shortly after the call Johnnie arrived in a taxi and the Cauleys left because Johnnie was drunk and offensive, and as they were leaving Johnnie forceably restrained her momentarily, but that when she told him to go to the automobile and tell the Cauleys goodbye, he left her and went in that direction. It recites that she then went in her house to get her gun because she was scared of Johnnie “with them gone”, and then went back into the garage where she again saw Johnnie and told him not to touch her again, but that he started toward her with his hands outstretched, not saying a word, and that she shot him. After this she called the Cauleys who returned and after much dissuasion convinced her not to kill herself and “some considerable time later after talking more and my going out to check further on Johnnie and after my mind was made up that he was dead we all decided to call for an ambulance and the Police * * *

No weapon was found on or about the deceased’s body.

Appellant called Mr. and Mrs. Cauley and they testified of Johnnie’s arrival, his disorderly conduct, their departure, appellant’s call, their return and their efforts to calm appellant, who at first • voiced the intention of killing herself and later agreed to call the police. Their testimony differed only in that Mr. Cauley stated that he saw Johnnie assault appellant as he and his wife were leaving, and he estimated that it took them an hour to get appellant into the house before the police were called. Mrs. Cauley testified she did not see the assault and estimated that it took them about five minutes to get appellant into the house. She denied that she and her husband sat in the kitchen and discussed what they were going to tell the police, but said they had to calm appellant down before they called.

The witness Lesser testified that in the .afternoon of the day in question Johnnie had come into his place of business intoxicated and that appellant suggested that they leave as she did not want to argue inside. The witness Ruby Register corroborated Lesser’s testimony.

Appellant testifying in her own behalf admitted signing the confession but stated that Officer Rockwell helped her make it. She recounted that she had gone with Johnnie off and on for a year and a half, but stated that she did not love him because “he was a drunk, an alcoholic”. She detailed fully Johnnie’s prior assault upon her which sent her to • the hospital but ■admitted that she had asked that the charges against him be dismissed and admitted that Johnnie had spent the night in her home on one occasion. She detailed the altercation with Johnnie in the afternoon at the establishment where she was drinking beer, his telephone call to her home after midnight and his subsequent arrival. She stated that as the Cauleys were leaving Johnnie twisted her arm, put his arm around her neck and momentarily cut off her breath, but that he released her and she thought he had left, that she got her son’s pistol not knowing it was loaded, and upon Johnnie’s return pointed it at him and pulled the trigger because he kept coming toward her not saying a word and that he fell to the ground where he remained motionless. She explained the delay in calling for an ambulance by stating that she did not believe that Johnnie was dead “and when they (the Cauleys) convinced me he was dead we called the police.” She admitted on cross examination that while the police were enroute to her house she went out to her barbeque pit in her back yard and burned a picture of herself and her girl friend’s husband.

The jury resolved the issue of self defense against appellant and we find the evidence sufficient to support the conviction and shall discuss the contentions advanced by brief and in argument.

Appellant first contends that the court erred in declining to admit a purported record of Jefferson Davis Hospital which shows that some unidentified “out patient” was treated at that institution for a laceration of the scalp and bears the notation “kicked in the head by Johnny Mead”, which appellant had in her possession while on the witness stand. No effort was made to show the authenticity of this record and the court did not err in declining to admit it.

Her second contention is that the prosecutor committed reversible error when he asked appellant the following question: “As a matter of fact you shot Ralph Coster, didn’t you * * The question was not answered and appellant’s general objection was sustained and the jury was instructed not to consider the question. Appellant asked for no further relief from the court. In the recent case of Matlock v. State, Tex.Cr.App., 373 S.W.2d 237, we said:

“In the recent case of Baker v. State, Tex.Cr.App., 368 S.W.2d 627, we quoted from Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447, and said: ‘The court ruled favorably to the appellant on his objection. After his objection was sustained he appears to have been satisfied because he asked the court for no further relief. Appellant is in no position to complain of said statement. 5 Tex.Jr. (2) 61, Sec. 39; Martin v. State, 157 Tex.Cr.R. 210, 248 S.W.2d 126; Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652; Pruitt v. State, 164 Tex.Cr.R. 340, 299 S.W.2d 148.’ ”

She next contends that reversible error is reflected by the following argument of the prosecutor:

“Please do not consider this case any less serious because it was tried in one day. There were, as you recall, a number of witnesses and at the time the offense occurred there were very few people present and it was not necessary, naturally, to bring you several witnesses to tell you what happened at 1219 Niagara. I think you could tell from the officers’ testimony that they were concerned about what happened at 1219 Niagara. I think you could tell during the trial that we were concerned about what happened at 1219 Niagara, that we were concerned and the Grand Jury was concerned — ”

Appellant’s general objection was sustained and the jury was instructed not to consider “that statement”. In Sparks v. State, 161 Tex.Cr.R. 100, 275 S.W.2d 494, we had before us very similar argument. There we said that the argument “the witness Rouse, the officers, the grand jury and the court, had done their duty and it was up to the jury to do its duty” was “no more than a statement that those connected with the case had done their duty and it was up to the jury to do its duty”, and did not constitute reversible error.

We need not discuss appellant’s objection to the court’s charge as no objections were leveled thereto at the trial and the same is not fundamentally erroneous.

Her fifth point relates to argument. It is apparent from this record that it was the State’s theory that at least Mrs. Cauley, if not both of them, were present at the time the fatal shot was fired, and there was some evidence from the witness Killings-worth to support such theory. They both, however, as is shown above, denied that they saw the shooting. In his argument the prosecutor said:

“There’s no doubt in my mind, and if you haven’t figured it out, Mrs. Cau-ley was there when this murder occurred. * * * ”

Appellant’s objection that the same constituted unsworn testimony was overruled. We have concluded that this was nothing more than an expression of the prosecutor’s opinion from the evidence which had been introduced, and therefore does not constitute reversible error under the well established rule set forth in Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548, which has been cited with approval many times through the years.

Her final complaint is to the following argument: “Any number of witnesses took the stand and not one said this defendant was a good citizen and her reputation for being. * * * ” This argument was interrupted by an objection and was not completed. It is practically the same argument quoted in our opinion in Scarborough v. State, 171 Tex.Cr.R. 83, 344 S.W.2d 886, where, as here, an application for suspended sentence had been filed and proof had been made that appellant was eligible therefor under the law.

Finding no reversible error, the judgment is affirmed.


text:
    John D. WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37861.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.
    M. Gabriel Nahas, Jr. (on appeal only), King C. Haynie (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley E. Woodard, Jr., and Bohn Phillips, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is indecent exposure (Art. 535c Vernon’s Ann.P.C.); the punishment, 7 years.

The evidence, including the testimony of the then eleven year old girl and the confession and testimony of appellant, shows that on or about May 14, 1963, appellant’s private parts were exposed so as to be seen by the child named in the indictment.

Appellant was driving a foreign made car in the City of Deer Park, Harris County, Texas. The eleven year old girl who was riding a bicycle and had stopped at an intersection was standing beside the car which had also stopped and, as appellant testified: “She could see real good the way she was.”

According to appellant’s testimony he did not know that his pants were unzipped and his penis was showing until he noticed that the girl “looked rather startled” at which time he looked down and became very embarrassed and put his hand over his private part to attempt to cover it up. He testified that it was never his intention at all to expose himself to the little girl.

In his statement he said that when he looked down and “saw that my ‘thing’ was out of my pants. It was sticking up erect a little” and “I got it in my hands and put it back into my pants.”

The girl testified that when she looked in the car she saw something that looked like a badly swollen thumb on appellant’s left hand which was in his lap.

She testified that she had never seen the private parts of another man and it was only when he passed her, after she left the intersection, with both hands on the steering wheel and they were normal, that she realized what he had done.

The issue raised by appellant’s testimony and the portion of his statement that he offered in evidence was submitted to the jury. By their verdict the jury found that appellant exposed his private parts or genital organs to the girl intentionally and with lascivious intent and that the girl named was a female under the age of 16 years.

We find the evidence sufficient to sustain the conviction.

Appellant contends that the court erred in admitting the written statement of the defendant without having resolved the issue of voluntariness.

The state’s proof that the confession was voluntarily made and the statute complied with was not questioned, either before or after part of it was offered and read to the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, has no application. Miller v. State, Tex.Cr.App., 387 S.W.2d 401; Creswell v. State, Tex.Cr.App., 387 S.W.2d 887.

Appellant’s next complaint relates to the cross-examination of appellant as to his having been fired from a job with the City of Deer Park.

Appellant had testified that he was fired and that drinking, politics and a gun was involved, before any objection was made. The objection “to this line of questioning” was that it was immaterial. There was no motion to strike or have the jury instructed to disregard the testimony that had been elicited. We see no error.

The complaint as to testimony to the effect that appellant had been seen “prowling around at night” is without merit for like reason.

No reversible error appearing, the judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    L. D. Frankie SUPAK, Appellant, v. The STATE of Texas, Appellee.
    No. 37287.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.
    Second Motion for Rehearing Denied April 21, 1965.

      Eugene A. Smith, Joe J. Newman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, C. A. Davis and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

■ The offense is drunk driving; the punishment, 7 days in jail and a fine of $50.

In our original opinion we sustained the appellant’s contention that the trial court erred in overruling his plea of former Jeopardy without having passed upon the state’s contention that such claim of error was not properly before this Court.

The transcript contains what is designated as “Defendant’s Motion to Dismiss Cause,” in which the facts were alleged relating to former jeopardy based upon a previous trial which terminated in the discharge of the jury before verdict, over objection of the appellant.

This motion bears the endorsement “Motion overruled — -April 2, 1964 Wallace Moore, Judge To which Defendant excepts.”

The state correctly contends that the exception shown on the instrument below the signature of the trial judge is insufficient as an exception. Smith v. State, 172 Tex.Cr.R. 78, 353 S.W.2d 854; Kliesing v. State, 165 Tex.Cr.R. 585, 309 S.W.2d 445; and Hughes v. State, 152 Tex.Cr.R. 297, 213 S.W.2d 820.

The statement of facts contains certain stipulations and testimony “on motion to quash” which evidence was heard by the court prior to any announcement by the defendant in the case. The stipulations and evidence relate to the prior trial which terminated in a mistrial.

In view of Section 6 of Art. 759a, Vernon’s Ann.C.C.P., which requires that “the facts adduced in connection with any Motion shall be filed with the clerk separately from the facts adduced bearing upon the guilt or innocence of the defendant,” this Court is not authorized to consider the stipulations and testimony adduced in support of the motion which the court overruled. Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Hampton v. State, 157 Tex.Cr.R. 244, 248 S.W.2d 488; Pierce v. State, 159 Tex.Cr.R. 504, 265 S.W.2d 601; Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523.

Attention is also directed by the state to the fact that Art. 760e, V.A.C.C.P. does not authorize the consideration of informal bills of exception relating to the overruling of a plea of former jeopardy.

The claim of former jeopardy is not before us.

The evidence shows that appellant was operating his automobile upon a public street when it collided with the rear of an automobile driven by Raymond Taylor. Officers and other witnesses who observed him testified that he was intoxicated at the time and the state offered evidence to the effect that a blood sample taken from him was analyzed and found to contain .11 percent blood-alcohol concentration, which the chemist-toxicologist testified indicated intoxication.

Witnesses for the defense testified that appellant was not intoxicated.

The jury resolved the issue against appellant and there is sufficient evidence to sustain their verdict.

Our prior opinion is withdrawn.

The state’s motion for rehearing is granted; the order reversing the conviction and directing that the prosecution he dismissed is set aside, and the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

On rehearing appellant relies upon Henry v. State of Mississippi, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). We have concluded, however, that Bartkus v. People of State of Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed. 2d 684; Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729, and Hamilton v. State, 115 Tex.Cr.R. 243, 29 S.W.2d 393, are here controlling.

Appellant’s motion for rehearing is overruled.


author: WILSON, Justice.

text:
    FULTON BROWN FEED STORE et al., Appellants, v. Mrs. Jack H. ROBERTS et al., Appellees.
    No. 4352.
    Court of Civil Appeals of Texas. Waco.
    March 11, 1965.
    Bracewell, Reynolds & Patterson, William H. White, Houston, for appellants.
    Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.
   WILSON, Justice.

Defendants appeal from an order overruling a plea of privilege tried before the court. Plaintiffs pleaded contributory negligence generally. There are no findings or conclusions. The points are that there is insufficient evidence, or none, of negligence or proximate- cause. We affirm.

The suit arises from a collision between two meeting trucks. The driver of the truck we will call plaintiffs’ was killed. Defendants admitted that at the time of impact their truck-trailer unit “had jackknifed and was sliding.” After the collision defendants’ vehicle was on its wrong side of the center of the four-lane highway; that of plaintiffs’ was on its proper side. The latter was damaged on its left front; defendants’ truck sustained damage to its right side. There is circumstantial, physical and opinion evidence that the point of impact was in the lane of traffic of plaintiffs’ pickup truck. There is evidence defendants’ driver admitted he was traveling approximately 55 miles per hour on a wet pavement just before his truck started to slide. Defendants offered no evidence.

Although the evidence is meager, in our opinion it is adequate to sustain the implied findings in support of the order.

Affirmed.