*1 Appellant, BAKER, Arthur Texas, Appellee. STATE
No. 35570. Appeals Texas.
Court of Criminal
April 10, 1963. May 22,
Rehearing 1963. Denied Rehearing Denied
Second Motion for June *2 (on
Arthur Lapham, appeal L. Victoria only), appellant. for Douglas, Austin, Leon B. Atty., State’s for State.
DICE, Commissioner. murder;
The conviction pun- ishment, peniten- ninety-nine years tiary.
The indictment or charged that on about day the 31st of August, “unlawfully, voluntarily did and with mal- aforethought ice kill and murder Laura manner, way Baker in some or some means, weapons instruments and * * Grand unknown Jurors The foreman grand jury returned the indictment testified that in investigation its grand jury was unable to determine the or actual means the kind or character of weapon killing used in the deceased. Appellant and deceased were hus- wife. band and Lloyd Hotz, called as a witness state, that on the took and his the witness wom- companion in the an to his home out coun- Arrangements Cuero. were try from evening to return that around o’clock take them back to town. panel returned about dark in his time, At such his wife was truck. drinking. Both had been After Hotz him. appellant that was not informed going town, appellant and his wife back left. later, way Twenty appellant returned and that “You could feel all the down minutes told him to have to the base The doctor to the house. of the brain.” When “That in, appellant replied: opinion stated that in of death his wife come cause *3 he multiple bitch better not here.” was skull come in While deceased frac- up lying porch damage was on the his wife came tures and intercranial brain which suffering porch on the and in a “kind was caused more than one blow to “ ‘Loyd, give voice” me a drink head. said: ” got Hotz some water and told water.’ Cable, per- Dr. Herbert Francis who wife, appellant who was give to it to his autopsy body formed an of the porch.” Ap- slumped “kind of back on the deceased, gave description similar a his in took the water and threw it injuries expressed and and his wounds “ to face, you T saying: wife’s told opinion that the cause of death the de- ” me, bitch, you you.’ Hotz then follow hemorrhage ceased was brain from frac- wife, at told not to mistreat his ture of the He also testified in skull. appellant pulled which time her off opinion his the skull fracture and other kidney. porch and kicked her in the left wounds were similar to ones caused Thereupon, grabbed appellant, who Hotz than one blow. ran to his truck and returned with a .22 appel- As a witness in his own behalf calibre rifle. Hotz and his woman com- day question lant that on the in testified panion then ran out the back door. help the state’s witness Hotz hired him to testified that start he then heard move; that he carried Hotz and his truck, pavement, his back and out onto the companion woman to the that morn- house proceed fast; highway very down the ing night and returned to the house after had hundred he traveled some two (appellant’s) Appellant re- his wife. fifty yards right he “kicked it into second * * * lated that when Hotz stated that he was quick jammed all the brakes ” * * * move, going to he and his wife left and then it sounded like the and a corner out the truck as he turned on “running motor was like” and kind of idle highway fell out of his wife the truck. turning backing up was either or up walking He turned around and saw her around. Hotz stated that he then heard “ “ ” house, leading lane after which a ‘Loyd’ call: and that ‘he * * * they to the house and he washed her went hollered or four times three I ” Appellant got and Hotz face with water. killed I mamma. killed mamma.’ Appellant argument. into an and his wife drops shows that there were Appellant put stated that he his wife left. porch and smears on front blood truck, chair back of the because the drippings Hotz’s house and of blood passenger on the in front as seat used from the house to the and into front out loose; was that he then drove off side public fifty Some road. two hundred go and as he as the truck would fast yards pool from the house a blood was high” he heard changed “second from in the road and some blood had run off to open fly and he looked back back door one side. was not in the truck. He his wife saw around, back, Bohman, drove and saw then turned pronounced Dr. A. J. back in flat on her the road. hospital, lying deceased his dead arrival at the wife that after he went Appellant stated very at such time she was breathing, and saw she was she was bloody huge and had a where laceration Lloyd “Bring me and said: head, eyes back he called to of her her were full of hurt.” stat- blood, Ma is forehead, some water. there bruises on her were bring did not the water nose, knees, when he ed that elbows, and that there got house and some and depressed he went to fracture on the left side of face, bathing her pushed While returned. skull where the bones were person misplaced and lost up someone drove and he told impossible call He stat- that it was the district police an ambulance. appellant. ed in the hack it to It put that he then his wife deliver tape the hos- also shown in record- straight truck used and drove pital. Appellant ing the testimony denied he hit had erased. wife on and denied response The record also shows that he killed her. to the order statement made court’s county attorney fur- the witness The court submitted appellant, nished to law circumstantial charge on the *4 used the witness. cross-examination of inter- defense of accident evidence. The exception The bill of certifies that: to posed by appellant submitted was also jury. the * * “* objection excep- no tion was made to the the failure of appellant’s first con We overrule any Attorney to District furnish state- to is insufficient tention that the evidence ments other than were fur- those that the state because support conviction nished defense counsel at the trial n * * » corpus prove the delicti. failed to by the state is sufficient evidence adduced her to death to show that the deceased came exception presents Bill II of No.
by appellant that violence and appellant’s complaint to the district attor his statement: guilty agent. The of him, response ney’s provide failure to to mamma,” the homi “I killed at scene of order, copy the court’s with a of a state cide, proven facts together the other with made ment the witness Hotz to the dis circumstances, sufficient to exclude attorney trict in his office. No reversible except hypothesis every other reasonable thereupon, may predicated error be required by the appellant’s guilt, as that of appellant no bill also certifies made charge. objection attorney’s to district failure to furnish statements to other than I, exception formal bill of By No. were, fact, furnished those at complains the failure appellant of trial. copy him a attorney to deliver to district testimony of the state’s witness exception V, By bill formal No. had grand jury, which' the court before appellant in re insists that court erred pur for the ordered delivered copy fusing allow pose cross-examination. made Hotz to the at witness district torney to be attached to his formal' bill of witness’s tes- The record reflects II, appeal. exception may No. No error jury had been grand timony before the predicated bill, as under the transcription made of tape-recorded and thereto, which ac qualification court’s recording. by appellant, the cepted court does not cer inquiry made of witness No tify that he allow the statement refused grand before he had to what Furthermore, the bill. to be attached to jury. exception to in referred the bill of record request made no shows situation, we held in a similar Under statement be attached bill.. 305, 306 Angle no reversible error was exception Ill, By formal bill No. reflected. complains of state following by the district in his ment further reflects the bill The record argument jury: transcript exception closing that the certifies this, In his else, trial, appellant motion for al- case like new “Something leged wants that on law, the last the trial he under the if the defendant learned that up character Dr. sent the brain bring to he is entitled to Cable had kidney charac- M. good witnesses to what a the deceased to Dr. Paul show Obert, Victoria, a pathologist ter he had.” at exam- ination, and that after the he discov- trial appellant had The bill that while reflects ered that Dr. Obert had re- made written sentence, suspended filed for a port, examination, based withdrawn, and that the it had been would refute the state’s that the argu- objection appellant’s sustained death of the deceased was caused consider ment and instructed not to than one blow. alleged in the agree unable it. are We motion that the evidence of Obert’s re- Dr. obviously preju- that such sowas port suppressed by the state. could not be its harmful effect dicial by the instruction. removed court’s Attached to the motion Dr. Obert’s affidavit which he IV, ap- stated exception that he did ex- By bill of formal No. *5 amine the brain and kidney of the deceased withheld pellant contends Dr. Cable report and made a his findings. of not The doc- trial in evidence at certain vital tor further stated that had him the called been the courtroom with bringing to upon to testify the trial he upon exam- would have report which made autopsy testified type that the injury in to dis- blow or caus- failing and the deceased ination of ing hemorrhage in kidney in the brain findings and all of his testimony close his could not by be determined accurately ex- report. amination specimen submitted but failure to bring Dr. Cable’s type that the of hemorrhage in the brain error, as report court autopsy to the was tissue was most commonly seen as a result it with request made that he bring was no single blow to the head. bill certified do facts him. The The evidence adduced any hearing withheld the doctor vital reflect of the motion for trial does not No new show as witness. while testifying evidence suppression by of evidence the state is shown. error reversible report. relative to Dr. Obert’s Nor does VI, exception bill of No. By formal the record reflect exercised complains of the court’s fail trial diligence in obtaining due alleged newly jury a unit after all swear ure to discovered evidence relative to Dr. Obert’s case. jurors had selected in the twelve report. juror that as each was select The bill shows request by the No he was sworn court. ed Dr. Cable the trial jury and swear the as a whole made to was kidney the brain and of the deceased were court’s failure objection no sent to Dr. Obert examination. body. them as a court’s ac so The swear Appellant made no sub- swearing juror each as he was se tion in compliance poena with Art. Dr. secure Obert’s lected was attendance Ann.C.C.P., the oath prescribing trial, Vernon’s any request a witness at nor was capital juror to each in a administered to be delay until made for the witness could by presented No error the bill. case. by appellant. contacted exception VII, ap- No. By formal bill of record, complains refusal of the court’s Under the the court did not newly ground a new trial on the discretion in abuse his
grant
refusing
grant a
State,
and that the
evidence
state had
trial.
discovered
new
165 Tex.Cr.R.
Jones
certain evidence
the case.
suppressed
We have
exception
reasonably
formal
in the
have concluded
discov-
appearing
bills of
body
facts and find no reversible
ered her
after she had walked from
error
highway
therein.
house onto the
and
Hotz’s
applied
where
hurriedly
brakes
Appellant’s complaint
to the
upon discovering her.
have reconsid-
We
testimony
children,
of his three
War
ered the record and remain convinced that
John
Baker,
McNabb,
ren
Mrs.
Mrs. Frances
has,
case,
State
dis-
sufficiently
Kocian,
prior
Lenore
threats
relative to
charged that burden.
appel
mistreatment
deceased
disposed
appellant’s
We
contention
lant,
objection
is without
No
merit.
that reversible error was reflected
made to
of Mrs.
testimony
McNabb
complained
argument
without citation
appellant’s
Mrs. Kocian.
testimony
authority.
urged
We are
to differ-
son,
Baker,
appel
relative to
Warren
John
entiate
at bar
Harmon
from
deceased,
lant threatening and
striking
State,
Tex.Cr.R.
45 S.W.2d
homicide,
years
six
admis
before the
State,
and Freeze v.
1257a, V.A.P.C.,
sible under Art.
as show
appel
previous relationship
between
ing
lant and the
deceased. Stokes v.
Harmon,
In
the accused submitted a writ-
Appellant’s
Tex.Cr.R.
Opinion approved by the court. State, 437, Bearden Tex.Cr.R. v. 169 334 447, said: S.W.2d we FOR ON MOTION REHEARING favorably ap- “The court ruled objection. on After his ob- MORRISON, Judge. jection appears was sustained he Appellant holding issue our takes with have satisfied he because asked that the evidence sufficient to exclude Appel- for the court no further relief. hypothesis except every other reasonable position complain in no lant is appellant’s guilt. original our In 61, statement. 5 Tex.Jur.(2) said Sec. a reference opinion, we omitted tes- 39; State, 210, v. Martin 157 Tex.Cr.R. timony Worthington, stated of Officer 126; State, 248 Earwood S.W.2d v. 161 hospital a rifle from that at took 171, 652; Tex.Cr.R. 275 Pruitt part appellant’s truck and when the front State, 340, v. 164 299 S.W.2d Tex.Cr.R. noticed it the sheriff he blood he handed 148.” hands, well as on his Freeze, the prosecutor there was “blood around In went outside Officer Clark muzzle, jury stock and the record and invited the gun,” investi- over the both theory reputation support gate that deceased met of the accused after would repeated on jury the result of blows their service com- her death head, pleted. and shoulder as in- This is more akin face to that about testimony. State, we held The fact which reversible Bowers the doctor’s v. dicated 345, 27, was found some 171 Tex.Cr.R. asphalt of the 350 S.W.2d and the cases there cited rather than not militate such a the case at wounds would pool large of blood was bar. finding because obviously, brought incompetent prose-
Here,
prosecutor
about
the as-
when
though incorrectly,
guarantee
present
cutor. No such
is
operating
appointed by
represent
for sus-
sumption that
an
counsel
the court to
once
pended
an
proper
indigent
qualified.
accused is not
sentence was made it was
appel-
him to comment
the failure of
may
Appellant
not here collateral
reputation
court
lant to call
witnesses. The
ly
prosecutor
qualification
attack the
presence
quickly
him in
informed
State,
county attorney.
to act as
Snow v.
jury
that he was
error and instructed
263,
wherein that he stated WOODLEY, Judge Presiding (concur- prosecutor agree and instructed ring). to consider the argument. appeal agree properly that this dis- I first raises the time posed original submission. on question county of the competency of the agree do I attorney, who prosecution, assisted in the competency county attorney is before grounds paid his Bar had not State, us for review. Tex. Martinez dues. Cr.R. 318 S.W.2d relied majority of this Mar- reversed Court appellant, and should over- wrong tinez Tex.Cr.R. 318 S.W.2d ruled. the attorney appointed by because qual- defend accused was not ified practicing’ grounds on the process due clause of the 14th *7 requires charged
Amendment one capital felony represented by quali- Supreme
fied advocate. The Court of has, Meyes in Douglas United States & parte WILLIAMS, Ex Louis M. Jr. California, 372 U.S. S.Ct. No. 35832. 811, and Wainwright, L.Ed.2d Gideon 372 U.S. 83 S.Ct. L.Ed.2d Appeals Court of Criminal of Texas. since Martinez extended the to non- rule June capital cases. compe- We have here a case in which the
tency attorney, district interro-
gated all but witnesses, one is not
questioned. The is attack leveled county attorney, who so far this rec- questioned
ord only reveals witness. one may, prepared
Be this as it we are not
to hold that an accused has constitu- right competent lawyer
tional have
prosecute competent, him. If is not then protected
the accused amply in the event
of conviction the reversible errors