*2 DOUGLAS, Before TOM G. DAVIS DALLY, JJ.
OPINION
DALLY, Judge. appeal This is an from conviction for voluntary manslaughter. punishment imprisonment years. is for seven Appellant contends that a on in- voluntary manslaughter have been should given; erroneously admitted trial court by appellant evidence a statement made prior being to his advised of his constitu- rights tional as mandated Miranda Arizona, U.S. S.Ct. (1960); L.Ed.2d 694 evidence of im- excluded; properly the trial court errone- concerning ously testi- instructed mony by spouse of a defendant case; re- criminal and the State committed by subpoenaing versible error know, sworn, just like he was mad —I don’t having wife as a her in his he kind of crazed look having had a her excluded under the witness rule. eyes. a. m. Sometime between 1:00 and 1:30 “Q. fly open? Did door 20,1976, August appellant fatally shot Bob- Sargent Dean as the two stood in the remember I think did—I don’t Club, office of the Red exactly, Fox a restaurant whether the door was *3 by appellant. opened. and bar in was Midland owned closed or whether shooting The was the culmination an “Q. There is here that the door evidence argument appellant between and the de- you forced force it open. was Did stag ceased over the whereabouts of a film open? belonging argument to the deceased. No, sir. “A. bar, began in the then moved to the kitch- the door “Q. right. when All And en, where the deceased struck at opened, you? did hit the door police least once with his fist and where the door “A. I don’t whether remember later found a broken number of dishes. hit me or not. Appellant testified that he left the deceased in the “Q. right. All he came When in the kitchen and to the office to went call room, what you did do? Sites, might Jack who believed there, he running When he in Appellant have the de- “A. came deceased’s film. me, we kind of—he subsequent looked and scribed the events as follows: “Q. “A. “A. “Q. “Q. Well, [*] All And it or Sites? Yes, But I don’t even remember whether I closed it or not. wouldn’t I don’t remember whether I closed right. you [*] sir. did locked it —I don’t office, were have locked it. you Did [*] did start to call Mr. Sites? going you you [*] —when to call lock the door? [*] I know. you never do. Mr. went [*] Jack I “A. “Q. All pushed him back —I had a kind of don’t Well, them.’ fired so he can tell are,’ my pocket. ute —or seemed like ‘I’m Sargent,’ right. going I he know, said, shot. stood grabbed I said, What did and I’m ‘because I get you there for pulled it out And I ‘just Jack where at me. wait.’ dialing I don’t have he do then? said, ‘Now, just a min- your films minute, pistol in And I I phone Jack. said, I I Yes, got phone “A. sir. And I Jack on the “Q. right. All started you And when Sites, start talk- you “Q. right. you
call Mr. ever on did did All Now occasion, ing you get a chance to to Mr. Sites?
talk to him?
Yes, sir, I
“A.
did.
Well, yes,
“A.
sir.
“Q.
you
gun
Did
still have
“Q.
right.
All
hand?
You talked to Sites from
little
office?
Yes,
“A.
sir.
Yes,
“A.
sir.
right.
happened then?
“Q. All
What
“Q.
right.
you
All
started
Now when
Well,
at me.
Sargent,
lunged
he
“A.
number,
dialing
hap-
what
Sites’
was talk-
And whenever he did—I
pened?
And he
ing
phone.
Jack on
grabbed
Sargent
through
grabbed
telephone, and
bursting
“A.
came
And I
hand.
there.
a lot of
me
the other
And there is
stuff
phone
swing
got
laying
tried to
in there. And when-
around
—he
did,
I remem-
just
He
loose from
And then
ever he
me.
me.
scared
there,
I
back —I don’t
know,
going
ber that was
running
you
come
not,
Yes,
know whether I fell or
sir.”
A.
A.
A.
Q.
Q.
Q.
Q. And when he
[*]
you would have been a dead man?
your mind,
All
have the
yourself?
ahold of the
there
Did
killed me.
Did
want to kill that man?
standing there talking
shot —I
and with the
No,
No,
possession,
right.
you
you
sir.
[*]
sir.
any question
guess
gun,
Now if that man had
I think he would have
[*]
then or
gun,
gun
came at
I shot
other than to
is there
reason on earth to
reason on earth to
[*]
in
in
your
now,
again.
got
you,
any
[*]
hand,
but what
mind but
doubt in
protect
phone,
gun
[*]
was Code,
you
got
justifiable risk that the circumstances exist
included offenses of
or the result will occur.
quested
sult of his conduct when he is aware of but
lessly
stances
consciously disregards a
the trial court erred
death of an individual. V.T.C.A. Penal
ter.
of self-defense.
ter and
trial court
slaughter
*4
Code,
A
Appellant
person
or is
Sec.
Sec.
surrounding
aggravated
when he
6.03(c).
19.05(a)(1).
reckless,
charged
commits
indicted for murder.
Appellant
involuntary
assault,
his
voluntary
recklessly
by refusing
A
substantial
conduct
involuntary
respect
person
V.T.C.A.
and on the law
contends that
on
manslaugh-
manslaugh-
causes the
to circum-
or the re-
the lesser
acts reck-
and un-
his re-
Penal
man-
got
what if he
gun
away from
appellant’s testimony
When we read
you,
you
that
were going
get
to
light
6.03(c),
supra,
of Sec.
we find no
shot?
appellant
evidence that
acted in a reckless
Yes,
A.
sir —he scared me.
I was
Indeed,
manner.
testified that he
appellant
afraid.
shot the deceased in order to ward off the
Q.
right.
All
You are in this little
latter’s
The trial court did not err
attack.
bitty room.
you
Had
invited him in
refusing
to
submit
involun
the room?
tary manslaughter.
See Brooks v.
No,
A.
sir.
(Tex.Cr.App.1977);
Scott
Q.
you
Do
remember,
even
55,659,
as far
(No.
23, 1979).
May
decided
State
concerned,
that’s
pulling the trig-
Officer David Wilks testified that he was
ger?
dispatched to the Red Pox Club to check
No, sir,
A.
time,
I don’t. I do the first
report
shooting.
out a
of an accidental
but I don’t remember
the second
club,
acquaintance
Outside the
he met an
time.
appellant
who told him that
had shot some-
Q.
you doing
Were
anything to the
club,
appellant,
one. Wilks entered the
saw
man when he
lunge
made this
acquainted,
with whom he was also
you, other than telling
you
him that
appellant
happened. Ap-
asked
what had
were going
get
the man on the
pellant
told Wilks that
the deceased had
phone, to satisfy him about
them
locked himself in the office and shot him-
films?
self, and had
call the
appellant
told
not to
right.
A. That’s
I told him that. And
police. Appellant contends that his answer
talking
was
to Jack whenever he
question
improperly
admitted
Wilks’
was
lunged at me.
objection
over his
because he had not been
Q. And
gun
that’s when the
was fired?
rights.
advised of his constitutional
A.
Arizona,
Q.
supra,
In Miranda
you
And
had no intention on earth
to do
that
anything,
pro-
Supreme
other
United States
Court stated
than to
yourself?
tect
hamper
its decision was “not
intended
police
impeach
traditional function
attempted
officers in
or had
investigating
by proving contradictory
crime .
on-
him
state-
General
ments,
questioning
per-
the-scene
have been
as to facts surround
then
would
ing
general
proof;
a crime
mitted to have introduced such
questioning
or other
arises,
but,
contingency
citizens
until such
fact-finding process
testimony disputing
gives
fact that he
holding.”
affected
our
384 U.S. at
would make
that offered
the state
Although
S.Ct. at 1629.
Wilks had been
no such
admissible.’
someone,
told that
had
[Cita-
shot
this
tions
information was
omitted.]
not inconsistent with the
report
initial
shooting.
of an
impeached appel-
accidental
“The
had not
State
statements,
nothing
There is
by proving contradictory
in the record to establish
lant
had
general
become the focus of a
or attacked his
criminal investigation
when
The fact that
Wilks asked
gave
him what
that of-
happened.
testimony disputing
had
To the
lant
contrary,
put
it is
fered
would not
clear from the
State
record that
general reputation
No error is
statement was
in issue.
during
investigato
ruling
shown in
trial court.”
ry process
part
of the
general
as a
on-the-
questioning by
scene
Wilks. The trial court
subpoenaed
One of the witnesses
admitting
not err in
the statement.
Hill,
present at
Patsy
who was
Lovel v.
(Tex.Cr.App.
This contention is without merit. First, questioning Wilks’ While one of the waitresses and tes presence the timony are at the Red Fox Club outside contradictory; at no time jury, prosecutor the the asked about making deny the statement by Hill fol- statement made to the witness Moreover, attributed to by him Wilks. objected to lowing shooting. Appellant the even if the testimony contradictory, were exchange then question. following this appellant’s good reputation evidence of place: took truth would not have been admissible. The State, rule going is well stated in “THE Is Mrs. Hill to be Wallace v. 501 COURT: (Tex.Cr.App.1973): testify, presume? S.W.2d 883 available to I “In has sub- Matthews v. “MR. BURNETT: State 80 Tex.Cr.R. Court, poenaed her. S.W. this in sustain- ing the permit trial court’s refusal to Well, might “MR. we MARTIN: prove by defendant to two witnesses his clear, is the get well this too. What good reputation veracity, Defend- relationship Patsy Hill to the ant, said: you do know? “ that, ‘The rule is well established if I know is that “THE All WITNESS: just the general rep- they They state had attacked his are were not married. veracity by any living together. utation for truth and “MR. Honor, Your law improper MARTIN: the at- statement of the and consti- torney for the Defendant has advised weight of the evi- tutes a comment District Attorney’s office Hill Patsy that dence, following requested that in- and married, and the Defendant are that given: struction be he will interpose objection that to the that are further “You instructed ” ever her calling State as a . . witness Defendant, prosecution in a criminal offense, any right may waive secured Subsequently, stipulation was entered law, right by of trial except him Patsy married, that Hill were case.” Jury capital felony ain State neither called her wit- as a 38.11, V.A.C.C.P.,provides that: Art. questioned any ness nor pres- witness in the may, . and wife “. . The husband ence of the jury concerning any statement actions, be witnesses for in all criminal her. other, as hereinafter except each but During his own direct testimony, provided, they testify in no case shall lant was following asked the questions: against prose- criminal each other in a “BY MR. BURNETT: ” . cution “Q. forgot Stewart, you, ask to Mr. exceptions ap- None of are wife the enumerated subpoenaed has been this plicable case or to the instant case. the District office, Attorney’s has she not? It is error for the State reversible Yes, “A. sir. to as a call the defendant’s wife “Q. I explained you you that forcing pres in the thereby object him to have a right keep your from wife jury, ence of the when this is done in such a testifying case, haven’t I? impres convey manner as to the wife, testify, sion that if allowed to “Q. explained I have also you testimony previously would rebut defensive you may objection, waive that and let given. Johnigan the State they do whatever want to (Tex.Cr.App.1972); Wall *6 about calling witness, as a her (Tex.Cr.App.1967). Clayton In v. S.W.2d59 not? State, (Tex.Cr.App.1971), 769 465 S.W.2d hand, that while the the other we held “Q. And it is wish Open Court prosecutor having the defendant’s erred in to waive any objection? such to wife as a witness in order have her sworn “A. That’s right, sir.” under the wit excluded from the courtroom rule, require this reversal. ness error did not Appellant contends that the com- State mitted reversible in subpoenaing error to indicate nothing There is in the record witness, as wife a having then her sworn State, subpoena that at the time the for the jury before the and the excluded from issued, of Hill was was aware the fact that Appel- courtroom under the witness rule. Moreover, appellant’s she wife. it was was lant contends compound- that this error was appellant’s counsel who drew the attention ed when gave the trial following court the Hill jury of the to the fact that was mar- jury: instruction to the subpoenaed ried to and had been “Our provides law further the that who, questioning and in his of as may not the call wife of a Defend- the appellant, sought emphasize to State’s to testify against ant the Defendant having appellant failure to call Hill any trial, criminal provides further testifying. objection waive to her We that this law not may be waived the circumstances, that, hold under the the Defendant.” not error in State did commit reversible sworn,
Appellant objected subpoenaed, to and exclud- paragraph having this of Hill the grounds on the an that it is ed the witness rule. under
154 shooting
We also hold that the trial court inconsistent in giving testimony placed appellant’s did not err instruction to its the later and thus concerning testimony by justified appellant’s the credibility defend issue and spouse refusing ant’s and in call request re that he be witnesses allowed quested appel Contrary reputation veracity. instruction. to his as contention, against lant’s prohibition general is that where rule spousal testimony right adverse is not a except contradictory there is no evidence which be waived a defendant under evidence, bolster the permissible not it is 1.14, Art. disqualification V.A.C.C.P. The by proof of his testimony of the witness spouse an of adverse witness cannot be veracity. good reputation truth and Johnigan State, supra; waived. Caraba State, 179, Rodriguez v. 165 Tex.Cr.R. See jal (Tex.Cr.App. 477 S.W.2d 640 (1957), cases there cited. 350 S.W.2d 1972); Krzesinski v. 169 Tex.Cr.R. 241, Tex.Jur.2d, Witnesses, 192, p. In 62 § (1960); 333 S.W.2d Bush v. is stated: it (1953). Tex.Cr.R. be admissible “Unless should given The instruction by the trial court is a ground it is corroborative that correct statement of the law. It does not to on some to what a testified witness has evidence, comment on the weight of the nor issue, rule, in civil and material both give any does it of the indication trial impeachment cases of in criminal is that opinion grounds court’s of These the case. party is an the witness the adverse of error are overruled. calling of prerequisite essential judgment is affirmed. of in one witnesses to sustain him Before the court en banc. principle, recognized ways. Applying this permissible ruled it has been that it OPINION ON APPELLANT’S MOTION . that the to introduce evidence FOR REHEARING good for veraci- reputation witness has a impeached ty until his has been ONION, Presiding Judge. rehearing urges On this court authority, is In 242 of the same § properly dispose not of his contention written: refusing the trial court erred in conformity import “In with the guilt allow him to call witnesses at in this ‘impeach’ terms ‘contradict’ stage testify general of the trial to as to his law, may department a witness In testimony in supported merely because State’s case-in-chief officer Wilks testified To with his been introduced. conflict has that when he the scene of arrived at *7 supporting the of authorize introduction homicide he asked what appellant hap- the have been testimony the must witness pened and was told that the deceased had charged he is impeached in the sense police, said not to call the locked had him- fabricating testify- of testimony or with self in the office and shot himself. After attempt or must ing falsely; an case-in-chief, the State rested its the prior a he made been made to show that argument lant testified that after an the testimony, his statement in with conflict deceased had where rushed into the room he inconsistently or has conducted himself was, (appellant) acting in and that self-de- . . .” therewith . fense, he shot and killed the deceased. On cross-examination, questions were no asked 269, authority p. at of the In same § appellant the statement officer about is written: related that appellant Wilks made to him. has predicate been proper “Unless a party to appellant’s competent
It
is
for a
contention that officer
laid it
repu-
good
testimony concerning
Wilks’
the
show that his
bears
statement
witness
admit that tes-
by
appellant
veracity,
made
the
the scene of
for
for to
at
the
tation
timony
having
without the witness’s
been
have been heard. The Court went fur-
impeached
an
White v.
would
to introduce
un-
ther
that case
and discussed
State,
necessary
575,
collateral
567,
ap-
issue.
42 Tex.Cr.R.
62 S.W.
proving
holding
the
therein.
rule,
“In
general
accordance with the
mere conflict in the evidence
not a
is
White case the State
intro-
“In
predicate
sufficient
.
accused,
part
of its
against
duced
as
chief,
by
case
made
him
statements
general
contends the
rule
He took the
with reference to the crime.
applicable
light
should not be
to him in
contrary. He
stand and swore to the
officer
testimony
Wilks’
case-
State’s
sought
testimony by
then
to bolster his
subsequent testimony.
in-chief and his own
other
differentiat-
that of
witnesses.
In
State,
In Mitchell v.
128,
156 Tex.Cr.R.
and White
Stillwell
ing
between
384,
(1951),
a fact situation
cases,
Court said: ‘The clear distinc-
case,
similar to the instant
this court wrote:
in such
state offers
tion is that
case the
Exception
“Bill of
No. 12 is
leveled
contradictory
to those
no
statements
the failure of the trial
permit
court
appellant,
original
proves
but
to offer character witnesses’
testimony
and state-
his declarations
testimony
good reputation
as to his
for
ments,
put
he
and that
cannot thereafter
veracity.
truth and
testifying
his
in evidence
character
case,
“The
in making out
its
contradictory
to those
his behalf
facts
proved by
peace
upon
two
officers that
offered
the state.’
Tex.Cr.R.
[104
their arrival at the scene of the homicide
pointed out that virtue of the order of procedure, having above the *8 contradictory the issue as to the appellant,
statements of he was therefor impeached and the to his as
reputation for truth and should original deny making opinion prior 1. It should be statement be- noted inconsistent play. interpreted, question submission should not be into It fore the rule in comes according brief, implying triggered by lant does to as well. See other means Tex.Jur.2d, Witnesses, 284, p. that a or defendant other first 271. witness must §