*1 MOORE, Appellant, Ormond Texas, Appellee. STATE
No. 36914. Appeals Court of Criminal of Texas. May 27, 1964. Rehearing Denied June Polk, Dallas, for
Glenn Stephen Wade, Atty., W. Henry Dist. Allison, Guittard, Edwin L. W. John Attys., Dist. Turlington, M. Asst. Jr., and C. Atty., Dallas, Douglas, State’s Leon B. Austin, the State.
DICE, Commissioner. murder; pun- conviction
ishment, death. *2 question, time, in night the the deceased deceased’s On automobile the first in riding together alongside and one Hill were had Impala driven an automobile James city the in a of Dallas 1956Ford automobile. which some men and riding. women were time, driving appellant The deceased the At occupants was automobile. such the said to m., Impala: Around as auto- 1:30 a. the deceased’s the “Let me have those women * * * stop stopped punks, mobile at the sign was for a You let us have those Avenue, Spring and A Impala intersection of women.” man in gun, Second the drew a automobile, pointed air, a male Pontiac with five the and said: “Who’s * * * being occupants by appellant, punk you punks and calling driven areWho ?” bumped Appellant it from the rear. The deceased then into fired shots at the two automobile, got Impala, whereupon out back to Impala of his walked was the driven Pontiac, away, the had the by appellant and some words with and was followed and talking appellant, chase, the companions. appel- After to his During the gun and gave Stevens, deceased returned to his automobile lant the to James away companion drove his a cafe. riding with to was on the back seat. While Later, m., pursued, and Impala around a. as the deceased stopped the and the occu- companion pants his got had started home and were running. out and started James stopped stop sign Mc- proceeded at a at Oakland and Stevens then at to shoot those Street, fleeing Impala Dermott the Pontiac automobile gun the from again appellant bumped appellant driven given into shooting had him. After at Thereupon, rear of appellant deceased’s automobile. them companions and his drove and, got away the deceased out of his get shortly automobile to some and more shells steps, when he had shots bumped taken two some thereafter into the deceased’s auto- were fired of the from driver’s side mobile first time. fell, Pontiac automobile. deceased testimony appel- The witness’s relative to wounded,
mortally ground, to the companions shooting lant and his at the gunshot right wound in the His chest. occupants Impala clearly automobile companion, Hill, alighted then proof constituted of an extraneous offense. he, too, shot, automobile and in the right shoulder. trial, When offered at the the state in- sisted testimony that was admissible It was shown' evidence that 1257a, Ann.P.C., under Art. Vernon’s to fatal shot which struck deceased appellant’s show the condition of mind at appellant fired shot he shot In brief deceased. which struck Hill was fired one James court, and oral- before it is appellant’s companions, Stevens. James the shooting state’s contention that occupants Impala of the and of the presenting In in.chief, its case the state all permitted deceased was one continuous transaction to show the witness James testimony Ellis, was therefore admissible occupants Louis one gestae. the res by appellant, that, prior automobile driven meeting appellant to the first ap- agree are unable night question,
deceased on the We proof pellant companions difficulty appellant Impala shooting into the his had vicinity Fair automobile was admissible under Art. Park with oth- some 1257a, parties supra, er his riding show the condition of who were in a 1962 Chev- rolet mind time he automobile. at the shot the deceased. Art. 1257a, supra, provides: appellant’s objection Over proof offense, prosecutions stituted of an extraneous “In all felonious witness appellant Ellis testified that before homicide the State or the defendant companions up permitted testimony his drove behind shall to offer
(628 Nine, No. Formal circumstances all relevant facts and judge by appellant, previ-
surrounding
killing
closing
relationship existing between
certifies that
ous
*3
attorney
deceased,
jury
district
stated:
together
the assistant
accused and the
facts and circumstances
all relevant
“
murderer,
this
‘But
sits over
of the
going
show the condition
to
here,
by
Hidden
his counsel from the
the time of
mind
the accused at
of
jury,
scrutiny
Hidden
homicide,
may be considered
”
counsel.1
punishment
jury
determining
“
”
* *
*
Polk, if I had a
‘Mr.
client that
assessed,
(Emphasis,
be
to
is,
your
guilty
was
as
client
a
supplied.)
blooded,
murderer as cold
hide
would
”
docs
extend the
evidence touch
rules of
him too.’
admissibility
bearing upon
ing the
of facts
“
him
‘You’ve seen
hide behind his
the accused’s state of mind. Howard v.
counsel as he came into
court-
State,
371,
55
S.W.2d
”
room.’
shooting
Impala
at a different
into
“
killing
kicks,
you
‘It
awas
if
place
separate
and distinct
and
was a
”
please, and that was all.’
shooting
act from the
the deceased.
“
Proof of such act could show neither ill-will
just
kicks,
killing
'The
was
deceased,
nor malice toward the
who was
joy killing.’”
stranger
appellant.
Such facts dis
a
It is further certified
the bill that:
State,
tinguish
v.
this case
Chavira
115,
319 S.W.2d
where
prejudicial
“All
highly
of which
and
inflammatory
part
arguments of the
acts of the
a
of the
State’s
accused were
n sametransaction
Attorney,
was outside
and held to be admissible
record,
response
anything
not in
identity
of both
and
(cid:127)on
issue
intent
done,
the Defendant had said
and
shooting
the accused in
of the de
(cid:127)of
repeated
continuously
De-
while
shooting
agree
Nor do
that the
ceased.
we
objections
being sus-
fendant’s
were
Impala
killing
of the
into
Court,
tained
will
To
deceased was one continuous act.
prejudicial
foregoing
reflect that
contrary,
appears
no
that there was
con
as well
numerous other
acts,
they
nection
the two
but that
between
personal vilifications and abuse of
separate and distinct acts. The shoot
Defendant’s
with which the
counsel
ing
of the
into the
record is
deceased,
killing
gestae
res
aof
doubt that the Defendant suffered
permitting
the state
court fell into error
irreparable damage
injury which
proof. McRae v.
101
to make such
mitigated
could not be lessened or
1067;
275 S.W.
Chester
Tex.Cr.R.
rulings.”
57;
150, 300
108
S.W.
Tex.Cr.R.
State, 125 Tex.Cr.R.
69
Glover
bill,
signing
In
trial
136;
Tex.
Lawrence v.
S.W.2d
following
taken there-
action was
Maddox
Cr.R.
S.W.2d
on :
289, 115
.2d
Mounts
S.W
Exceptions
foregoing Bill
“The
me in due time
Appellant
to be tried not
was entitled
filed, subject
approved and ordered
criminal,
upon
charge
generally,
but
following qualifications:
said that
against him.
It cannot
certify to the
proof
“The
does not
was- not
Court
of the extraneous offense
contents therein
truthfulness of the
apparent
only
certify
It should be
he
are
that had
does
argu-
entertained
view
the Defendant.
tentions of
ment
he should
no doubt would have
B. Brown
“/s/ Joe
granted
declared a mistrial or
a new trial.
“Judge”
apparent
It
from the
should also
provisions
760d,
Under the
of Art.
Ver-
judge’s
quoted
certificate
Ann.C.C.P.,
duty
is
non’s
opinion
certify
that he refused to
that such
exception,
to act
the bills of
were facts
certified that such were
defendant,
filed
within one hundred
contentions
the defendant.
days
appeal
given.
after
His
notice
*4
majority opinion
The
is in error in
approving
action shall consist of either
cluding
approval
refusing
judge’s
trial
hills or
same with the court’s
qualifications
was tantamount
bill with
reasons noted thereon.
all,
to no
in
in
action at
is also
error
court,
In the instant case the
assuming that Art. 760d V.A.C.C.P. has
effect,
approved
certified that he
bill
may
authorizing
been or
be
construed
approve
but did not
it. The
action
court’s
requiring
Exception
No. 9 be
was tantamount to no action at all. Under
qualification.
approved
treated as
without
court,
the decisions of this
where no action
presented
Bill No. 9 was
to the trial
judge
is taken
the trial
on a bill of
judge
approved
qualifications
with
exception
prescribed
within the time
a manner authorized
Art. 667 V.A.C.C.P.
approved by
must be considered
the court.
applicable
and the
Rules of Civil Procedure.
Pennington v.
171 Tex.Cr.R.
qualified
It was
filed with
clerk as so
345 S.W.2d
85 A.L.R.2d
Da
exception
and there
qualifica-
was no
State, Tex.Cr.App.,
maris v.
tion.
Treating
approved,
464.
the bill as
improper
which was
portion
The
of Art. 760d V.A.C.C.P.
obviously prejudicial
any bearing
excep-
has
on a bill of
approved by
tion
to and
the trial
out,
pointed
For
judgment
the errors
judge
qualifications
with
to which there
is reversed and the cause is remanded.
exception,
paragraph
was no
is the last
Opinion
approved
the court.
which reads:
“Nothing
prevent
in this Act shall
WOODLEY, Presiding Judge (dissent-
defendant and
ing).
agreeing
or to
correctness of
exception
the bill of
filing
and the
aside,
part
This conviction
is set
at
ninety
thereof in the trial
within
court
least, upon the erroneous conclusion that
days
appeal
from the date notice of
the trial court has certified as
a fact
given.
exception
bill
Such a
shall be
the remarks of the assistant district attor-
approved by
considered as
the trial
ney,
majority
set out in the
judge.”
opinion and
Exception
in Formal Bill of
No. were
highly
inflam-
may
Bill of
No. 9
not be
matory; were outside
and that
the record
approved
qualification,
treated as
without
“as well as numerous other
qualified by
must
considered as
personal
vilifications
abuse
defend-
following
the trial
under
au-
ant’s counsel with which the record is
thorities :
of a doubt that
irreparable
qualification
damage
suffered
The
of a bill of
defendant
trial court’s
Townsley
injury
exception
which could not be
becomes a
of it.
lessened or
mitigated by
rulings.”
S.W. 1054.
presume qualifi-
insistance that
defendant’s
appellate court will
approve a
exception
bill in such manner as to
duly
cannot
certified bill
cations in
destroy it.
of the defend-
were made
consent
ap-
contrary
ant or
counsel unless
respectfully
dissent.
judge.
pears
certificate of
over
Ray
S.W.2d
MOTION
ON STATE’S
FOR
Blackshear
REHEARING
264, 128
S.W.2d
appellate
rejecting
court
To warrant
MORRISON, Judge.
qualifications to bill
contained
matters
We remain convinced that
case must
ex-
been an
exception there
have
must
reversed because of the admission
thereto,
ception
taken
Jenkins
relating
extraneous
evidence
556, 40
S.W.2d
incident.
accepted
When bill of
thereto,
objection,
qualifications
without
has reconsidered
*5
of
appellant
impliedly
truthfulness
admits
Exception
Bill
of
No. 9
has concluded
Ap-
Criminal
qualifications.
of
Court
error,
that
it
while
certifies reversible
qualifications
by
peals
bill
is bound
fact
is
no error
shown because the record
objected
exception
been
not
have
jury
argument,
contains
and it shows
311,
State, 103 Tex.Cr.R.
v.
to. Chandler
timely objection
that
was not made. We
the statement of facts reflects the absence timely objection.
of-a majority If the is correct bills exception certifying error are to be con- approved by
sidered as de- spite his notation thereon that contents HODGES, Appellant, W. G. bill de- “are contentions of the fendant,” No. 9 certifies Texas, Appellee. reversible error. The STATE No. 37040. respectfully (1) dissent to the failure to recognize and treat Appeals Court of Criminal of Texas. qualified by bill of *6 June filed; holding before it (2) to the judge’s qualification that the of Bill of
Exception No. 9 “was tantamount to no all,”
action at and (3)'to holding that timely objection in the ábsence of shown elsewhere in the record reversible error by “highly prejudicial not in- shown flammatory jury, statements to the record, provoked were outside response any or in of Defend- ant’s counsel and which amounted to vili-
fication abuse not Defendant Attorney but his as well he when Attorney, again abused Defendant and his * ** All highly inflammatory arguments of Attorney,
State’s was outside record, anything response done, had and was Defendant said or continuously repeated while Defendant’s
objections by the sustained
Court.”
The bill quali- without the fication of the trial court certifies that such n appeal. attorney No on argument was made. further an It certi- “ * * * Austin, foregoing preju- Atty., fies B. Douglas, Leon State’s well dicial as numerous other for the State.