Christesson v. State, 34015

• Decision Date: 03 January 1962
• Docket Number: No. 34015,34015
• Citation: 353 S.W.2d 218,172 Tex.Crim. 27
• Parties: Bert Wade CHRISTESSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 218

353 S.W.2d 218

172 Tex.Crim. 27

Bert Wade CHRISTESSON, Appellant, v. The STATE of Texas, Appellee.

No. 34015.

Court of Criminal Appeals of Texas.

Jan. 3, 1962.

Blythe & Norvell, Clovis, N. M., Billy Hall, Littlefield, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is assault with intent to murder; the punishment, seven years.

The prime question in this case is the propriety of the court charging on provoking the difficulty. The 750-page statement of facts will be condensed with that question in mind; that is, was there any evidence in this record to show that appellant, by his own willful act, brought about the necessity of assaulting the injured party and thus deprived himself of his right of self-defense. Appellant did not testify, but offered a number of witnesses in his behalf.

Hartwell, the injured party, and two companions had repaired across the state line to a bar in New Mexico. While there, he met Betty Miller (appellant's ex-wife and a former waitress at the bar in question), who had come from Clovis, New Mexico, with a group of eight people, one of whom was appellant. While appellant was engaged in other matters, Betty went to the bar, where she and Hartwell were drinking and talking when, unfortunately for all concerned, Mrs. Hartwell, who was out looking for her missing husband, entered the bar and observed what was transpiring. Angered at what she saw, Mrs. Hartwell approached Betty and gave her a resounding slap. Betty testified that she would have replied in kind but was restrained.

Following this, both groups left the bar and proceeded to their automobiles. Betty, according to her own testimony, approached the automobile in which the Hartwells were seated and invited Mrs. Hartwell outside. Upon Mrs. Hartwell's refusal, Betty told her that Hartwell on repeated occasions had offered her money to 'go with him'; this Hartwell denied. Mrs. Martin, a member of appellant's party, approached the automobile in a belligerent manner, and, in defense of his wife, Hartwell hit her. After this, both automobiles containing the two groups left the bar and drove to a cafe. It was the testimony of those in appellant's group that, while at the cafe, Hartwell said, 'There is that s. o. b. and that g. d. slut with him.' This was denied by Hartwell, his wife, and Mrs. Venable, the only other person in the automobile. Neither group got out of their respective automobiles, and both parties drove away from the cafe, with Hartwell's car in the lead. A short distance away, Mrs. Venable stopped the automobile in which the Hartwells were riding to pick up her husband at a roadside park, and appellant also brought his automobile to a halt, alighted, and struck both Hartwell and the automobile (with the weapon which is described later in this opinion), denting the top and cracking the glass, after which Mrs. Hartwell and her husband hastily fled the scene in the Venable automobile, with appellant in hot pursuit, leaving his passengers afoot on the roadside. Both automobiles came to a halt at a filling station in Farwell. During the course of this last trip, appellant's automobile 'bumped' the one in which Hartwell was riding several times, causing $130.00 in damage to its rear end. At the station, Hartwell, with a railroad type of lantern in his hand, got out of his automobile, and soon thereafter appellant got out of his automobile armed with a flexible club, fabricated from a doubled cable bound together with tape. There is a conflict in the evidence as to whether Hartwell struck the first blow. The lantern was demolished either before or as a result of this first blow. However, an affray did follow in which Hartwell received the injuries which constitute the basis of this prosecution. According to the State's testimony, appellant's companion Martin held Hartwell's wife for a time to prevent her from interceding, and later kicked Hartwell as he was lying on the ground.

The court charged on appellant's right of self-defense against an unlawful attack by Hartwell, based upon the testimony that Hartwell made the first overt act with the lantern. This was a proper submission of the defensive issue raised by the evidence. He then charged on provoking the difficulty. This was predicated upon the evidence concerning the pursuit by appellant from the cafe to the roadside park, his assault with the flexible club at that point, his continued pursuit after the Hartwells left the park, coupled with his act of ramming the rear end of the automobile in which the Hartwells were riding and his act of stopping at the filling station in question and alighting, armed with the weapon heretofore described. This, we have concluded, was a proper...