Smith v. StateSmith v. State
- Reporters:
- Before:
- Kennedy
OPINION
KENNEDY, Justice.Aрpellant was convicted of involuntary manslaughter and brings this appeal. We affirm.
The deceased was shot during an altercation with apрellant in appellant’s apartment. At the hearing on appellant’s motion to suppress, Officer Pagel of the Houston Police Department testified that he arrived at the scene and saw the deceased being tended to by paramedics. He spoke with two witnesses, the deceased’s wife and another, and was told that the shooting had occurred in appellant’s apartment, that appellant was probably still inside the apartment, and what the apartment number was. Officer Pagel noticed a trail of blood leading up to the apartment. After knocking and receiving no response, he acquired a pass key from the management and let himself in. No one was inside, but Officer Pagel noticеd a gun on the bed. He left the gun there and sealed off the apartment. One to two hours later Detective Motard, a homicide detectivе, arrived to investigate. He examined the gun lying on the bed and discovered an empty casing in it. Detective Motard ordered these items taken into custody and had numerous pictures taken of the inside of the apartment. He had not attempted to secure a warrant before doing sо. He stated at the hearing on appellant’s motion to suppress that he knew there were no suspects in the apartment when he arrivеd, but that he entered for the purposes of investigating and picking up pieces of physical evidence. It is the admission into evidence оf the gun, bullet casing, and photos to which complaint is here made, the basis of that complaint being that such were obtained by an illegal, warrаntless search. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
This Court will not determine the validity of searches and seizure of evidence unless that which remains unchallenged is insufficient to suрport a conviction. Brewster v. State, 606 S.W.2d 325, 328 (Tex.Cr.App.1980). The admission of unlawfully *502 obtained evidence can be rendered harmless beyond a reasonable doubt by the remainder of the evidеnce in the record. Bridger v. State, 503 S.W.2d 801, 804 (Tex.Cr.App.1974); Clemons v. State, 501 S.W.2d 92, 93-4 (Tex.Cr.App.1973).
In the instant case eyewitnesses saw appellant with a gun in his hand immediately prior to the shooting, although they did not witness the shоoting itself. Appellant himself testified that he struck at the deceased with the pistol, that he had no recollection of pulling the trigger, but that the gun must hаve discharged accidentally. We hold that the error, if any, in the admission of the evidence seized and produced during the search of appellant’s apartment to be harmless beyond a reasonable doubt. See, e.g., Brewster v. State, supra; Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979).
In his second ground of error appellant asserts that thе trial court committed reversible error in instructing the jury on the lesser included offenses of murder, namely: involuntary manslaughter and criminally negligent homicide. Appellant requested instructions on these offenses, and then withdrew that request. Appellant does not question the sufficiency of the evidence to support either his conviction or the submission of a charge on the lesser included offenses, nor does he challenge the form оf the charge. Rather, his position appears to be that the trial court may not so charge absent a request by the accused.
Involuntаry manslaughter and criminally negligent homicide are lesser included offenses of the offense of murder. There was evidence to support the submission of these issues. See
Complaint is next made concеrning the exclusion of evidence regarding the drinking habits of the witnesses Loomis and Boyd. Each admitted to having been drinking prior to their arrival at appellant’s apartment just before the shooting. Although the witnesses may be impeached by showing that they were drunk at the time of the event about which thеy testified, such may not be accomplished by evidence of a general habit of intoxication. Bituminus Casualty Corp. v. Martin, 478 S.W.2d 206, 209 (Tex.Civ.App.—El Paso 1972, writ ref’d n.r.e.). The evidencе here in issue falls squarely within this rule, and the trial court acted properly in excluding it.
Appellant contends that the trial court erred in refusing to instruct thе jury on circumstantial evidence. As previously stated, appellant testified that the gun was in his hand when it discharged, which resulted in the deceased’s dеath. Thus, the only element to be proved for which circumstantial evidence was relied upon by the State was that of intent, and no instruction was needed. Cadd v. State, 587 S.W.2d 736, 740 (Tex.Cr.App.1979). The testimony of appellant was direct evidence that he was the actor who brought about the death in question which does not require the instruction requested. Williams v. State, 566 S.W.2d 919, 924 (Tex.Cr.App.1978). Appellant’s fourth ground of error is overruled.
Appellant next asserts error in the admission of testimony of the peace officer who arrested him. Appellant was approached, while hitchhiking on a public highway, by Deputy Croch оf the Erath County Sheriff’s Department, because he fit the general description of the subject of a manhunt. Deputy Croch had appellant place his bag and hands upon the car, patted him down, and asked for identification. Appellant told him that his name was Mike Case, produced a Texas Driver’s License bearing that name, and said that he (appellant) was hitchhiking from California to Houston. It is appellant’s contentiоn that these statements were improperly admitted in that they were made in response to the deputy’s questions prior to the giving of *503 Miranda warnings. 1 The constitutional safeguard enunciated in Miranda is not apрlicable when the statements admitted into evidence are not confessional in nature and in no way implicated the accused in the оffense involved in the prosecution. United States v. Kirk, 528 F.2d 1057, 1062 (5th Cir.1976). See Nielssen v. State, 456 S.W.2d 928, 930 (Tex.Cr.App.1970). The statements here at issue do not fall within the Miranda rule, and there was no error in admitting them.
In his sixth ground of error appellant argues that refеrence made by the State’s attorney to prior offenses during closing arguments constituted prosecutorial misconduct. Appellant had аdmitted on cross-examination to having been previously sentenced to six years in the penitehtiary on four charges. In alluding to these offensеs and suggesting that they tended to affect appellant’s credibility, the State’s attorney was not injecting new and harmful evidence. The ground of error is overruled.
The court admitted into evidence, over appellant’s objection, a wedding photograph of the deceased. Thе witness, the deceased’s widow, stated that the picture had been taken four years earlier and that her husband might have looked a bit older аt the time of his death, but that the photo was an accurate representation of what he looked like during his lifetime. As such, the picture was аdmissible. Alford v. State, 505 S.W.2d 813, 815 (Tex.Cr.App.1974). No abuse of discretion is shown. White v. State, 478 S.W.2d 506, 509 (Tex.Cr.App.1972). Appellant’s seventh ground of error is overruled.
In his final ground of error appellant takes the position that it was necessаry for the jury to make an affirmative finding of not guilty to the offense of murder before considering the lesser included offenses. This position is without merit. The jury’s finding оf guilty to the lesser included offense operated as an acquittal of the greater charge. Turner v. State, 518 S.W.2d 243, 244 (Tex.Cr.App.1975). This ground of error is overruled, and the judgment of the trial court is AFFIRMED.
Notes
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).