*1 only keep tol it from the of his the innocence of hands of the defendant the of- brother; herein; charged that he had fired it in self de- fense the indictment punishment being fense. the matter of the sub- ject of other proceedings herein.” clearly jury Such evidence left the with impression inexperienced ap- urged Appellant paragraph the entire pellant experienced was confronted with should be deleted but if retained reference fighter proof whom he had reason fear to the burden of be included. should and while deceased was unarmed separate paragraph In a cor- court protect acted out of him- fear rectly placed proof upon burden self. “beyond State a reasonable doubt.” There through- are at least four other references conclude the was thus State proof charge out the to the burden inquire appellant’s pre authorized to as to being “beyond a reasonable doubt.” Con- vious fights light of the claimed defense whole, sidering charge do not as a of self-defense and the of whether overruling ap- conclude the erred in court alleged offense was committed with pellant’s objections thereto. “fights” malice. The referred to Attorney District limited to were not those of error is overruled. Ground #9 crime, might constitute but could have error, Finding judg- no reversible ring, also prize referred to the ele or the ment is affirmed. mentary yard. school We cannot conclude that if error was committed was such er
ror as to call for reversal. Ground of error
#6 is overruled. sharp
There conflict in the cannot evidence to self-defense. We agree appellant’s that self-de claim fense was established as a matter of law Joseph VANWRIGHT, Appellant, overruling and the court his mo erred v. tions for an instructed verdict. Texas, Appellee. STATE of Grounds #8 are over #7 No. 42578. ruled. See McGruder v. Tex.Cr. 191; App., see Pruneda v. 377 S.W.2d also Appeals of Court of Criminal 510, 168 Tex.Cr.R. 329 S.W.2d 7, Jan. 1970. 88, Owns v. S.W.
2d 260. Cf. Parkman v. 149 Tex. Rehearing April Denied 1970. Cr.App. Parker Rehearing Denied June Second Patton v. 86 S.
W.2d 774.
Lastly, appellant contends respond to his failing erred guilt objection charge to the court’s at stage proceedings. charged the jury: only jury
“The function of the under any, if or guilt, is to find the *2 Matheny, & B. Good- Goodwin Joe
win, only) appel- for (on appeal Beaumont lant. Lindsey, Atty., Lawrence W. C. Dist. J. Beaumont, Gist, Atty., Asst. Dist. Jim Austin, Vollers, Atty., State’s
D. State.
OPINION
WOODLEY, Presiding Judge. murder; punishment, offense is life. ground of
Appellant’s first error er that the court committed fundamental arraign as failing ror 26.01, Ann. provided for in Art. Vernon’s C.C.P. part provides
Art. 44.24 V.A.C.C.P. presume that venue this court shall proved in the court below “ * * * arraigned, unless defendant was such matters were made an issue in affirmatively below, otherwise or it appears contrary from the record.” to the construing portion prior
In this C.C.P., (Art. 1925) been statute 847 has repeatedly presume held will no proved that venue was where filing of prior to venue was raised State, Harp trial. new v. 176; Thompson Tex.Cr.App., 383 S.W.2d 685; v. 160 S.W. 408 ground
Tullos v. S.W. Tex.Cr.R. This relates to number 1021; v. questions, Lawrence some of which were answered Doyle any objection before was made and some v. objection question Tex.Cr.R. Baker v. over the place. 187 S.W. tied down as to time and Thompson Tex.Cr.App., 393 S.W. incidents referred to most of the 2d 922. *3 questions prior occurred 8 years some to 563, State, killing. Davis v. 70 158 S. the No course of ill Tex.Cr.R. continuous 283,W. where re judgment holds that the treatment was shown. of plea guilty cited that a not entered Assuming ground of error com- defendant, objec
by the and he made no plies V.A.C.C.P., 40.09(9) with Art. which plead tion that he not to been called on requires that sep- the brief “shall set forth point in the trial court until he the raised * * ground *,” arately each of error trial, verdict, on a new motion for after previous the acts and difficulties between if in plead, failure to fact he did not do appellant and the deceased who had since so, was waived. living together been as hus- common law wife, why We see no reason the same rule band and with no of mis- evidence conduct, question quarrels, apply dispo- should not where the of threats or violent plea eight years, whether the of sition defendant tried on his too were remote guilty arraigned prior not had been raised under the of decisions this court properly first on for new trial were the time excluded. Davis v. 65 271, verdict. Tex.Cr.R. 143 S.W. Williams v. 590, 67 Tex.Cr.R. 150 S.W. Article provides: 26.02 V.A.C.C.P. Trammell v. S.W.2d 171. place “An arraignment pur- takes for the pose fixing identity hearing of note in this We connection that the en plea.” of actment Art. did 1257a V.A.P.C. not ex In Eckels tend the rules of Tex.Cr.R. evidence. Childers v. court said: Wiggins v. 27 S. “If knew that he was not ar- W.2d 236. raigned and not did want to ar- waive applies The rule of same remoteness raignment, he should have raised the the testimony exclusion of of the witness question the before conclusion the of ev- prior as to Esther difficulties be- Jones given idence op- the trial an tween deceased in the portunity arraigned.” to have him year 1960. ground error of is overruled. complains Ground of error No. complains Ground of error No. 2 that allowing the Dis erred the trial court committed reversible error read, Attorney punishment trict at the in refusing to allow the to testi- defendant the record of convic hearing, misdemeanor fy prior concerning his trouble with tions which were not in of Record Courts deceased and prior prior threats and acts as as not result arrests which did well of against violence him made the de- convictions, hearsay statements ceased, all which of were circumstances alleged details involved in arrests. going to show the condition mind of of the homicide, of Assuming ground accused at the time all error com- of supra,- violation Art. in the ab- plies 40.09(9), 1257a Ann.P. Vernon’s with Art. objections any C. find no revers- sence
4Q9 ible error reflected. note “My Joseph Wright; further I name is Van appellant agreed years that the entire list from am a old. I live at negro male 38 Arthur, relating Avenue, record misdemeanors 735 Dallas Port Texas. Supply which offered in the state evidence be read I for Port Iron West work Arthur, if any part was. in Port I am 7th Street not I have lived married but Jus- colored, 37, for Phillips, tina a female remaining ground re I man and wife. years as about 14 lates to the failure court to yesterday hours only three worked on self defense. and I did work rain because of the yes- also off today. at all Appellant’s defense was accident. We to pay town terday, went to and she find no evidence in the record which would yesterday, home I came bills. When raise shot the de- gave her cousin she had Son- told me that against defending ceased in himself un- *4 and he gas ny one dollar attack, apparent, lawful Shedrick giving real or rise I the bills. pay to her to town to had taken apprehension losing suffering life or Sonny did not take that later found out bodily serious injury. town, they brother call but her to a to We had her town. took Wolf had objections further note that I today told her when that about fuss charge special to requested charges and Sonny tak- about me she lied to that had presented are not shown to have been be to work went ing her town. to Justina fore the court’s was read to the I a.m. and 10:00 morning about jury, required by statute. 36.14 Arts. got and me store Dejohn’s Ben went to and 36.15 V.A.C.C.P. then went to sherry and pint a wine a and had on Street 7th Cafe The judgment is affirmed. Jessie’s day. came I home during the drinks few home came a short time Justina ON APPELLANT’S FOR MOTION that was about I guess and from work REHEARING I told her p.m. was when This 5:30 Sonny out about found I had about what arguing. I started and we and Wolf BELCHER, Judge. pistol I that caliber automatic a have In view of 1257a, the fact that Art. V. it picked and I player keep my in record A.P.C., relates to evidence may “which be pocket. I front left up put my it in by considered jury in determining the is because she did that scare to Justina punishment assessed,” to be and the fact I she thinks of me when always scared that the evidence excluded was offered at my pocket. knife a or a gun have the guilt or phase innocence of the bifur- go her to with me p.m. I told About 7:00 cated 37.07, trial (Art. 2(a), Sec. V.A.C.C. house use his to Howard Simmons’ P.) portion original of our opinion Sonny and ask him had call if phone and wherein we held that the evidence toas yesterday. Howard to town taken her previous certain acts and difficulties was went his house door so we lives next too remote is withdrawn. Sonny. to call phone and used Jus- he Sonny’s house tina called appellant introduced into evidence to his wife. About so talked home she the written statement by made him to Offi- hang up the time she was cer Landry after he had been duly warned her away I from and Son- phone took justice peace and Officer minute, just a Landry ny’s wife said Wait Wolf rights. of his The written state- ment in; you. dated at p.m., 8:05 tell So I maybe came he can January reads: he said that he talked to Wolf town, I gunshot
one that had taken her to so a Simmons heard and then saw hung up phone. appellant told How- coming out of his house. Justina “Well, Simmons, ard I had while were then said to call house law, gun my pocket a We left I her. have killed Justina.” fixing went back home and we were our Banks, After Ellen who lived in one side again why bed when I asked her she duplex of a with the and the de- Sonny lied to me about She Wolf. shot; side, ceased on the other she heard a argument I said wanted to start another ap- went to the asked the front door. She gun grabbed my pocket and she pellant where the and he deceased was gun got was in. I don’t know how * * * said, you “I shot her. do Where my pocket out of but I heard a shot and is? She’s the kitchen on think fell on the floor kitch- under the Justina floor.” en table and I some I went saw blood. next door to Ellen Banks’ house which Appellant testified that the told deceased house, just building my in the same with evening him that she Monday went I apartments. wall between the two Sonny pay appellant’s way On bills. law, asked her to call Tuesday p.m., Sonny evening home about 6 I left and shot. went to Cafe Wolf, brother, told the that his Jessie’s people 7th and told there Street some he, pay the and not took the deceased to I my something had shot wife or Monday. Appellant bills he testified that like that. I told them to call ambu- Sonny, gonna get told “I’m on Justina po- lance and about that time I heard the home,” get about that I he when and that *5 lice and coming, ambulance so I went got angry mad and at the deceased. When my back to house and I offi- showed the Sonny, they it still insisted put gun cers where I had the and he said door, house, and went next Simmons’ get put gun that he would it. I had the Wolf, telephoned appellant he who told player back the record where I al- Appellant took also testified Justina. ways gun.” leave the while at Simmons’ house he heard Justina gun in his tell that he had a Simmons visiting While in a appellant tavern with pocket pistol put it got but that he the and p.m., about Sonny 5:30 told him that he let in pocket they home because got Wolf take ap- the deceased to town. The “fixing” argument. there was to be an pellant replied: “Well, she told me a damn argument got They soon worse. be- lie,” that, and just “He didn’t a like for dis- gan struggling pistol the and it over him,” said, woman to lie to and later “Well charged and fell to the floor. G_ Goddam, I going am to kick her ap- At testimony the close the d_” Then they Sonny left and pellant, permission he asked the court for appellant let out of the car at his house. perfect exception. his bill of The court Sonny got When home about or 7:20 7:15 replied: pur- “This bill for all will be one p.m., appellant he told that the poses.” killed the deceased. Simmons, Howard neighbor exception, a In ap- perfecting his bill of the pellant deceased, and they testified that that the deceased in 1960 testified came to his house telephone pistol to use the struck him on the head with a and fell, him; or p.m., January 9, 7:30 he and and then she shot at After the by paid was told over which she a fine. He further Wolf $25.00 telephone that he took the deceased to testified that on another occasion she town, going pipe told “I’m him lead he did her: struck with a but you,” to kill Appellant and the also appellant and deceased not state when or where. caught returned to him their In that the deceased had house. a short time testified
4H at with another woman company at and also when time she shot him pipe.
struck him with lead Appellant’s written statement intro him; testimony at the by duced his own trial, statements conduct wit testimony
shown state’s nesses minutes before going said kill shooting he he was deceased, both his written statement said he testimony at the trial he sworn
got pistol put pocket only a
which was few minutes before deceased was shot. circumstances,
Under these facts and complained refusal to admit testimony perfecting excep- of as shown his bill of tion was not error. reversible appellant’s rehearing
overruled. *6 Appellant, DOBY,
Delmar Garvin Texas, Appellee. The STATE of No. 42671. Appeals of Criminal Court April 22, 1970. Rehearing Denied June