Donnie TEW, Appellant, v. The STATE of Texas, Appellee.
No. 36806.
Court of Criminal Appeals of Texas.
April 22, 1964.
Rehearing Denied June 3, 1964. Second Motion for Rehearing Denied June 27, 1964.
379 S.W.2d 893
Alton R. Griffin, Dist. Atty., Travis Shelton, Special Prosecutor, Lubbock, Roy B. Johnson, Asst. Dist. Atty., Leon B. Douglas, State‘s Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for murder; the punishment, fifteen years.
The testimоny of the state reveals that the appellant, Crickett Shirley, Homer Powell, Floyd McQueary, Barbara Jean Crawford, Janice Chapman, and the decеased, James Shobert, left the Lasso Club about 2 or 3 a. m., June 20, and went to the house of the appellant, where the appellant and the deceased began gambling with cards as the others watched while seated around a table. The deceased was defeated in the games, and when the appellаnt began teasing him about it, the deceased got mad, pulled a pistol, pointed it across the table at the appellant and told everyone to sit still. After a brief time, Powell started into an
The physician who examined and treated the deceased at thе hospital testified that pellets from a shotgun covered the left side of his face from the left side of the neck to the nose, and that the hemorrhage of the left temporal lobe of the brain was the cause of his death.
The appellant, testifying in his own behalf, stated that the during the time the deceased had thе pistol pointed toward him at the close of the card game, the deceased said “I should kill you” and also said several times that he was going to kill him; that after the deceased had shot Powell he put his foot on him saying “I ought to finish you off.”
At this time appellant knew of four other persons the deceased had recently shot and of two he had assaulted with a gun.
According to the appellant, the following occurred:
When everyone had left his home, the appellant went next door to the home of his parents and obtained a shotgun. Appellant then went to Shirley‘s house to see about Powell, and because he was afraid and did not know what the deceased would do if they met, he took the shotgun with him. When the appellant stopped at the curb in front of Shirley‘s house he saw Shirley and the deceased on the front porch. The appеllant, wanting to ask Shirley about Powell, called while seated in the car: “Hey, Crickett (Shirley).” Shirley did not respond, but the deceased turned around, reached for his pocket and as he pulled out his gun, the appellant grabbed the shotgun and got out of the car, when the deceased had leveled his gun on the appellant, he fired the shotgun at the deceased, the deceased fell, and appellant immediately left.
Shirley testified that as he opened the front scrеen door, the deceased was standing behind him, and when he was about one step inside the door he heard someone say “Hey,” and then he was shot in the right shoulder; and that he saw a pistol beside the deceased on the floor.
Billye Bownds testified that she was in Shirley‘s home when Shirley and the deceased stepped inside the front screen door, that when she heard someone say “Hey,” the deceased pulled a pistol and turned, facing the outside toward the street, and pointed his pistol outside, then she heard a shotgun discharged, and the deceased spun around and fell on the floor. She further testified that after she heard the shоt, she saw the appellant in front of the house getting in his car with what looked like a shotgun.
Appellant contends that the trial court‘s charge on provoking thе difficulty was not justified upon the facts presented and hence calls for a reversal.
The court charged the jury upon the law of self defense, and also upon the law of provoking the difficulty which is a limitation upon the right of self defense.
It is insisted that the trial court committed error in permitting the state to prove, over objeсtion, the prior marriages and divorces of appellant‘s witness Bownds.
The witness first testified that her name was Billye Bownds, and next that her true name was Billye Ann Huffman, explaining that Bownds was the name of her step-father. On cross-examination she stated that she was presently married to Judd; and that she was first married to Freeman Smalley.
At this timе the appellant objected “-to this, it has no bearing on the case.” The objection was overruled and exception was reserved.
The witness further testified, without objection, that after she divorced Smalley she married Aaron Gilstrap, then she divorced him and married James Witt, and after her divorce from Witt she married Judd.
The admission, without objection, of testimony of two marriages other than to Judd and Smalley, and three divorces, when considered in connection with the objeсtion as made to the testimony of her first marriage to Smalley, does not show reversible error.
The complaint directed to the question propounded to the appellant on cross-examination, about his purpose for going to Shirley‘s house, arose as follows:
“Q. Donnie (appellant), why don‘t you tell this Jury the truth, thаt you went over there to pull that gun on Jimmy Shobert (deceased)?
“MR. SALYARS: Your Honor, that‘s improper cross examination. The witness is under oath and testifying under oath.
“MR. SHELTON: I withdraw the question.
“THE COURT: All right.”
The question was withdrawn and there was no request that the court instruct the jury not to consider the question or a motion to declare a mistrial. Therefore, no error is рresented. Wall v. State, Tex. Cr. App., 240 S.W.2d 763; Meza v. State, Tex. Cr. App., 360 S.W.2d 403. However, the question does not appear to have been of such a nature as would call for a reversal under all of the facts аnd circumstances reflected from the record.
The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.
Opinion approved by the Court.
ON APPELLANT‘S MOTION FOR REHEARING
MCDONALD, Judge.
Appellant‘s able counsel strenuously urges that we were in error in holding that the trial court did not err in the submission to the jury of a charge on provoking the difficulty.
We have carefully re-examined the record and the opinion in this cause, along with numerous cases on this proposition.
We feel that a correct disposition was made in our original opinion. Appellant‘s motion for rehearing is overruled.