*1 name, from the mouth it comes unless that man—” Honor, we Your “MR. MARTINEZ: this time.” object at going Well, the heard “THE COURT: Stay record.” the evidence. Tex.Cr.App., 380 S.W. In Howe that, Your object held 2d we “We Honor, not sufficient time” preserve error. soundness convinced remain
We Howe, no error аnd find holding in our at bar. preserved in the case judgment affirmed. Epps by Raymond & Epps, Cutler Hous- ton, appeal only, appellant. REDD, Appellant, Jim Ronald Vance, Atty., Carol S. Dist. and James Scott, Brough and C. Robert Asst. Dist. Appellee. Texas, The STATE of Houston, Vollers,
Attys., D. State’s Jim Austin, Atty., for the State. No. 42380. Appeals Texas. of Criminal Court
OPINION 26, 1969. Nov. MORRISON, Judge. April 22, Rehearing Denied heroin; possession The offense is years. appeal
Appellant’s retained counsel on urges
earnestly to consider following argument
fundamental error the prosecutor, he contends con- which fail-
stituted comment testify:
ure
“ * * * They brought you Ramon’s doctors;
testimony. bring you They could of Ra-
they bring could the mother possibly who saw him while was
mon
using telephone; have could talking person he
brought phone way who we
knowing obtaining or no way *2 question. Our write on
casions to Statе, 428 opinion in Denham v. Spencer disposes contention. by appellant was involved relied *3 alleged in the in- prior in the convictions enactment of was before the dictment and 37.07, Ann.C.C.P. Article Vernon’s secondly that an
Appellant contends exchange the cоurt and defense between by counsel constituted discussion weight court on the the evidence and defendant’s to a comment on the failure testify. appears to be far Such contention had fetched. It that the court hearing admissibility held a on the certain in the absеnce evidence jury gave and the return of the “ * * * these instructions to counsel instructing and I am to ad the State not things mit (sic) those that I said shouldn’t defendant, be admitted and if the of course McDowell, Pat Dallas, appellant. fact, them, part wants admit of the Wade, Henry Atty., Tolle, Dist. admitted, you things right have the John Camille Finstrom, Elliott and P. come back and offer the rest if care James Dallas, Attys., Asst. Dist. and D. Vol- to.” Jim lers, Atty., Austin, State’s for the State. above, perceive From the as- we can no ap- sistance to the and injury State no OPINION pellant and hence rеversible error. MORRISON, Judge. further maintains that weight the evi- court on the commented The offense is assault with intent Appellant’s had ruling. in his brother dence murder; twenty-five years. that testified in the absence days alleged the date after three Appellant’s first hospital. In the visited evidence, relates to the introduction of presence was asked jury, of the punishment stage trial, the defense if he had tried talk to prior prior crim days of during the first three inal record as authorized 3(a) Section an his confinement. The court sustained 37.07, V.A.C.C.P., of Article as amendеd. objection part permit stated that to His contention is that Article V.A. might the witness answer be a conclu- C.S., complied was not with in that he was sion. The court then stated that “those given in advance of the trial notice serving objected to self declarations were that his convictions would be intro grounds on that should be duced, nor copies fur same on that would and I sustained it basis.” be nished a reasonable time before This objection was followed an the trial. “I then said: haven’t commented Prior to and since the 1965 revision of I said that the Statе ob- Code, this Court has had several oc- jected being serving them self and I grounds.” appears Tapley it It sustain on that explained away following: we said the the court made, may injury and no has been say though an accused “To that even shown. deadly weapon directly at the same, injured party and fired the but next contention is that kill, doing intend to so he permit Court refused to testi witness to bordering absurdity.” would be on an fy that did not look like he knew State, Tex.Cr.App., Dominguez also See doing
what he was
time
(October
1969).
statement. are at a loss to We injured have been how could His next states v. nothing this and more. In Scitern failing that the court erred in 833, 112, upon State, 219 87 Tex.Cr.R. S.W. simple aggravated a It is assault. relies, that which held court charges well that established such quеstion so the “fact for such asked required greater where it is clear that the objected and that to was truth counsel offense had been Barton and committed. knew it and did want State, Dutton 282 v. Tex.Cr.R. This is far the truth to out.” come 237; State, Butler 160 Tex.Cr.R. presented. cry question here We 492, 272 find no reversible error. in- He next is asserts that evidence prosecutor objected appellant had the to show that sufficient certain exhibits bringing into the courtroom specific kill malice when intent identification. purpose party. pistol injured he fired the 30, 1967, County. objection un- Bowie deferred action on the On October appel- again appellant’s til the exhibits submitted to state’s counsel advised were lant’s he had all packets counsel for examination. At counsel that point the that appellant; court retired thе convictions of the opened exhibited the files through them; turned and that gave counsel never asked them to see or permitting court erred in the introduction indication he was desirous cards, of certain were which looking at said records. Department certified the Texas Cor predicate required further rections. No Appellant’s counsel that the in- testified since the enactment of Article V.A. in question struments had never been ex- C.S., Handy interpreted by him; hibited offered that he or 160 Tex.Cr.R. 268 S.W.2d seen when state’s opened them counsel Mullican v. them, file and through turned he had S.W.2d 284. cases relied no idea what instruments contained by appellant antedated the enactment until were offered in the above article. state’s papers exhibited packet counsel himto and said that they some of Apрellant complains the intro appellant’s other convictions. duction, *5 hearing on of appellant’s The appointed counsel was the prior records of These convictions. May on and there were two were clearly admissible under the terms settings рassed for before the of 3731a, V.A.C.S., Article and Article September one on 25. Trial was had 37.07, 3(a), Section fact V.A.C.C.P. The beginning on October that the prior indictments some of the convictions contained para enhancement 37.07, Ann.C.C.P., Vernon’s Art. graphs would render not them inadmissible puts every accused on notice that the state under the statute. may prior record, show if criminal any.
Finding error, statute or re reversible Such does not limit judg- the any way ment strict in of affirmed. the method prior
such
criminal
The records
record.
prior
alleged
of
for еn
not
ONION,
WOODLEY,
J., and
J.,P.
automatically
are not
admissible
hancement
cur in
result.
the
provisions
3731a, supra.
under the
of Art.
Ordinarily,
the
doing
method
so has
of
ON MOTION FOR REHEARING
copies
been the use of
the
certified
of
prison
together
comparison
records
the
BELCHER, Judge.
print
quali
of a
by
known
of the
аccused
fied
In order
appellant re-urges
examiner.
of
admissible,
the
evidence to
the
number
record
be
one: That he did
offeror
requirements
notice
must meet
of the
certified exhibits introduced
3731a, supra,
by
Section 3 of Article
unless
the state during
hearing
punish-
opinion
of the
court the ac
ment as
trial
required
Sec.
of Art.
unduly surprised
cused
when the
was
Vernon’s Ann.Civ.St.
copies
state introduced the certified
attorney
state’s
testified that
prior
convictions. Denham v.
Tex.
orally
appellant’s
informed
at a
counsel
Cr.App.,
428 S.W.2d
Smith
prеvious setting
this
September
case on
Tex.Cr.App.,
ence of the see you what did hear or in the door in evidence of the certified offered exhibits next? criminal prior the state to show the appellant. The examination record gunshot “A I heard the first. that coun- fifty-page hearing of the reveals with and acquainted “Q you sel hеard a right, was All and after see, knowledge any- much of if personal gunshot you what making instruments thing contents of written ?
up the exhibits. He out doorway standing “A I him saw in the many claimed defects trial court gun with a in his hand. instruments exhibits contained urged objections thereto. man in “Q right, you All after saw in his doorway gun with a hand hearing, trial court At the close anything I if saw will ask as to the admissi- resolved the issues raised your brother about the unusual booth bility of the records when he announced sitting in? ruling that the exhibits were gun ruling, This fly admissible evidence. “A I saw cotton —when whole, fly be a suf- out of the record as сotton went I saw off ficient determination the trial court booth. unduly surprised was not when said your brother “Q you if I will ask copies the state introduced the certified you saw anything after or did conviction. sitting fly in the booth was cotton in? does not
Ground error number one present revеrsible error. said, ‘Oh, “A He I am shot.’ then, any- if “Q did he And what do *6 erred in reversing this conviction for thing ? urged grounds the in reasons his of error against his slumped “A wife. He over five, charge number failure to on circum- seven, stantial numbers six and man you I ask if the “Q And then will simple failure to aggravated any- in did gun the his hand with аssault; eight nine, and numbers the thing? insufficiency of evidence to the show my in gun the and stuck “A He come specific intent kill and to show malice. face. The evidence reflects that the assaulted where you us right. All show “Q Will wife, party brother, and his and his Elzie gun? the stuck tavern, wife, Watkins and his enterеd a took seats ain booth about fifteen twelve or eyes (indicating). Up my “A between door, feet from the front with the assaulted up sort of between right. “Q All party his sitting wife Just their backs eyes, then? your to the door while Elzie and his wife were sitting facing the door. “A Yes.
Elzie part Watkins testified in as follows: not he you whether or “Q I ask will you? anything to said right, you saw “Q All ask if I will him he came (appellant) when said, next.’ “A He ‘You the door? anything else to say “Q Did he he said that? when “A I him the door. saw walk in
925 said, next, re-urged: appellant “A He ‘You are m- it
the refusing trial court committed error request jury to retire the further offer the state of of Elzie some exhibits presence, their gun Watkins reveals that six of later not while was which were grabbed at his admitted into appel face he evidence. lant’s wrist or hand, pushed him back support To position against door, tоp and fell with and on request reasons his brief that: “this to the floor where sepa- refused and the State offered some (Elzie) was shot in back of the head. exhibits; jury rate was re- numbered Elzie then away took gun lengthy objec- tired and made appellant, and the the room. left tions; admitted; six exhibits were not
On Elzie cross-examination Watkins was returned and allowed receive testified as follows: some any knowledge 30 exhibits without admitted; contents of the six not
“A He (appellant) just in and walked jury returned a maximam verdict.” like, right shot my toward brother’s back. objеctions made the admission No were any presence of the exhibits in the “Q Did he—that asking, is what I am any In the absence of did he seem aim it? many time knew how originally “A He exhibits were offered or knew aimed it. the nature matter contained “Q you? Where were How far were admittеd, six not perceived. error is you from the defendant at this time ? ground The twelfth error is overruled. “A I to 15 feet.” complaint the admission in evi- dence cards is overruled The testimony is sufficient to warrant the for the disposition reasons shown grounds conclusion that the above ground of error number one. do call for a reversal. finger contention that his The tenth of error will be con- prints illegally during taken the trial sidered it has now been determined that penalty stage prove prior and used at the timely properly reserve Mc exception dоes not reveal error. to the court’s de- failure to *7 Kenzie Tex.Cr.App., fine S.W.2d “intentionally” terms and “volun- tarily” 67. two, three, Grounds of error numbers It is concludedthat such definitions pertaining four of the trial to comments necessary, being same words of the refusal of about commonly accepted meaning readily appellant’s appearance shooting after the 2307; understandable. 4 Branch 2d Sec. which were reviewed in the original opin- Tex.Cr.R.
Joubert ion have been light reconsidered in the Cave v. rehearing motion for it is 107,274 cluded that present do not error. The twelfth ground error which motion for rehearing is over- original was not considered on submission ruled.