Bell v. State

• Decision Date: 21 May 1969
• Docket Number: No. 42042,42042
• Citation: 442 S.W.2d 716
• Parties: Vera Lee BELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 716

442 S.W.2d 716

Vera Lee BELL, Appellant, v. The STATE of Texas, Appellee.

No. 42042.

Court of Criminal Appeals of Texas.

May 21, 1969.

Rehearing Denied July 16, 1969.

Lee P. Ward, Jr., David C. Middleton, Houston, for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment, 20 years.

The evidence adduced at the trial shows that on the night in question, at approximately 12:40 and 12:45 A.M. a woman who identified herself as appellant called the Houston police and requested an ambulance, stating that she had shot her husband and another woman, and giving her address. Within the hour five members of the Houston police force arrived separately at the address given by the woman to investigate the reported shooting. Sgt. Gordy, the first to arrive, related that he peered through the front door, saw a man lying on the floor, went around the house and entered through the back door, saw appellant on the phone but said nothing to her at that time, saw the nude body of a woman on the floor and a half-clad man severely wounded on the floor nearby. The man identified himself as Deputy Sheriff Bell, stated that he wanted an ambulance, that he was dying, and upon being asked by Sgt. Gordy who had shot him replied, 'My wife.' Sgt. Gordy then started for the front door and upon meeting Officers LeCompte and Carmichael, returned to the interior of the house, when appellant appeared and engaged Officer Carmichael in a discussion which neither Sgt. Gordy nor Officer LeCompte overheard. Officer Carmichael reported a chain of events identical to those related by Sgt. Gordy, and further stated, both on voir dire and later before the jury, that he did not arrest appellant, nor did he consider her to be custody, that he asked the usual, innocuous question 'What happened?', to which appellant replied that 'she caught them sleeping in bed. * * * She walked over to the lamp table * * * took out this pistol and shot them.' Eight empty bullet hulls were found on the floor near the bodies, all of which were identified as coming from the gun apellant admittedly fired at from the gun appellant admittedly fired at bullets which inflicted some sixteen fatal wounds on both bodies. Appellant's defense was that of self-defense.

The court properly charged the jury on self-defense and on malice, and the jury were justified, under the evidence and the charge, in returning their verdict. Appellant's first ground of error--that the evidence is insufficient to sustain a finding of malice, is accordingly overruled. See Bell v. State, Tex.Cr.App., 398 S.W.2d 133.

Her second ground of error relates to the court's overruling of appellant's motion for discovery. The trial court conducted a hearing on such motion and carefully, point by point, considered and ruled on it. Many of the matters set out in the motion were public records available to appellant upon request; others were matters not within the knowledge of the prosecutor, as so testified to by the prosecutor; and others have been held to be exempt from discovery. See Enriquez v. State, Tex.Cr.App., 429 S.W.2d 141; Bryant v. State, Tex.Cr.App., 423 S.W.2d 320; Hackathorn v. State, Tex.Cr.App., 422 S.W.2d 920; Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807; Smith v. State, Tex.Cr.App., 409 S.W.2d 409, cert. den. 389 U.S. 822, 88 S.Ct. 45, 19 L.Ed.2d 73.

We further note that nowhere in the record has appellant shown that matters sought to be discovered were material to appellant's defense or material to the issue of punishment, or that material matters sought to be discovered were in the possession of and withheld by the state. The Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, line of cases ¹ do not stand for the proposition advanced by appellant here--that she should have been granted carte blanche in rummaging through the state's files in the hope of uncovering some shred of evidence which might be of assistance to her either on the issue of guilt or punishment. Ground of error #2 is overruled.

Relying upon the cases cited above, appellant next complains of the court's failure to grant her motion to produce evidence inconsistent with her guilt and her motion to have the State list the names of all witnesses. Because the motions lack that degree of specificity required to come within the rule announced in Brady v. Maryland, supra, and because the record reflects that the State's subpoena, on which were listed all the State's witnesses was on file and available for public inspection prior to appellant's trial, and for the reasons pointed our in discussing her second ground of error, appellant's third and fourth grounds of error are without merit.

Grounds of error #5 and 6 relate to the court's overruling of appellant's motion to suppress evidence and motion to suppress a confession.

At the hearing on these motions, the court ruled that both motions would be 'overruled without prejudice on the part of the defendant to make any objections to the evidence referred to * * * at such time as it may be offered in the trial of this cause and without prejudice to request hearings outside the presence of the jury.' Art. 28.01, Vernon's Ann.C.C.P., upon which appellant relies, is not mandatory and the court, in its discretion, may elect to determine the merits of the motion at the time when the subject matter of the motion is first brought before the court during the trial rather than at a pre-trial hearing. In the case at bar, full and complete hearings were accorded appellant at the time the complained-of evidence and confession were introduced. This was compliance with Art. 28.01, supra.

We further note that the motion for suppression of the confession was filed on the first day of appellant's trial. The court's overruling of such motion is in accord with our recent opinions in Sonderup v. State, supra, and Bosley v. State, Tex.Cr.App., 414 S.W.2d 468, cert. den. 389 U.S. 876, 88 S.Ct. 172, 19 L.Ed.2d 162.

The seventh ground of error relates to a motion to require the district attorney to produce certain documents which motion was also filed on the day of appellant's trial. The documents referred to in the motion were, for the most part identical to those requested in appellant's motion for discovery. For the reasons pointed out in discussing the motion for discovery, and in reliance on Sonderup v. State, supra, and Bosley v. State, supra, this ground of error is overruled.

Appellant's eight ground of error relates to the approval of the record and certain objections and exceptions taken to the record by appellant which were filed before notice of completion of the record was given to appellant. Art. 40.09, Section 7, V.A.C.C.P. Assuming the omissions set forth in appellant's objections and exceptions to the record had been included in the record, we find no error reflected with or without such inclusions.

The ninth ground of error assigned complains of the court's overruling of appellant's objections to Officer Rollins' testimony that appellant twice called him on the night in question, requested an ambulance, and told him she had just shot her husband and another woman. Appellant testified to calling the police immediately after she fired the fatal shots. Gaines v. State, 157 Tex.Cr.R. 105, 247 S.W.2d 251. Ground of error #9 is overruled.

Her tenth ground of error relates to an alleged leading of a witness for the State. This Court does not consider the asking per se of a leading question a reversible error. Delespine v. State, Tex.Cr.App., 396 S.W.2d 133; Bryant v. State, Tex.Civ.App., 367 S.W.2d 684; Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606; and Piland v. State, 162 Tex.Cr.R. 362, 285 S.W.2d 230.

Complaint is made in her eleventh ground of error of Sgt. Gordy's testimony of the scene which confronted him upon entering the scene of the murders--that the nude female's body was covered with blood and had bullet holes in it. The admission into evidence of descriptive facts of this nature does not constitute error. Hackathorn v. State, supra.

The twelfth ground of error concerns a declaration made by appellant's husband to Sgt. Gordy at the scene of the shooting prior to his demise. The trial court followed the accepted procedure in making a determination of the issue raised by removing the jury and examining the witnesses prior to admitting the testimony of the officer. 29 Tex.Jur.2d Homicide, Section 142. The testimony adduced at such hearing established that the now deceased declarant was then conscious, was aware of impending death and did not make the accusation as a result of any questioning by the officer other than asking him 'Who shot you?', after the declarant had offered the statement '* * * Officer, I am a deputy sheriff, would you get me an ambulance, I am dying.' The court did not err in overruling appellant's objections and admitting the testimony. Seay v. State, Tex.Cr.App., 395 S.W.2d 40; Bradford v. State, Tex.Cr.App., 372 S.W.2d 336; Rawls v. State, 127 Tex.Cr.R. 414, 76 S.W.2d 1053; Thompson v. State, 79 Tex.Cr.R. 478, 187 S.W. 204; 29 Tex.Jur.2d 173; Homicide, Section 142; 4 A.L.R.3d 149, Section 3 at 156.

Appellant's thirteenth ground of error is that her inculpatory statements made to Officer Carmichael at the scene of the shooting immediately after his arrival should not have been admitted since they constituted a confession and she had not been warned of her rights prior to making the statement in accordance with Art. 38.22, V.A.C.C.P. and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Reliance is also had on the relatively recent opinion of the Supreme Court of the United States in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311.

A hearing was had out of the presence of the jury during which Officer Carmichael...