Currie v. State

• Decision Date: 19 June 1985
• Docket Number: No. 764-84,764-84
• Citation: 692 S.W.2d 95
• Parties: Rickey CURRIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 95

692 S.W.2d 95

Rickey CURRIE, Appellant, v. The STATE of Texas, Appellee.

No. 764-84.

Court of Criminal Appeals of Texas,

En Banc.

June 19, 1985.

Gary P. Patton, Denton, for appellant.

Jerry Cobb, Dist. Atty., and Fred Marsh and Jim E. Crouch, Asst. Dist. Attys., Denton, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Indicted for murder, the appellant was convicted by a jury of the lesser included offense of involuntary manslaughter. Enhanced by two prior felony convictions, alleged and proved, the punishment was assessed at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d), prior to the 1983 amendment (Acts 1983, 68th Leg., p. 1750, ch. 339, § 1, eff. Sept. 1, 1983).

On appeal appellant raised eight grounds of error. In his third ground of error appellant contended:

"The court committed reversible error in failing to admit evidence of the aggressive and violent nature of the deceased into evidence."

Although appellant did not testify, the issue of self-defense was raised by other witnesses, and submitted as a defensive issue to the jury. Appellant split his third ground of error into three parts contending the court erred in refusing to permit him to introduce: (1) records of the Denton City Police Department concerning the deceased, Danny Ray Revels, (2) testimony of a police officer as to the reputation of the deceased in the community, and (3) the records and testimony of the investigating officer concerning a prior incident between the appellant and the deceased.

On appeal the Ft. Worth Court of Appeals reversed the conviction after considering the third ground of error. The court in an unpublished opinion found that the trial court erred as to refusing to admit the evidence referred to in (1) and (3) above. Currie v. State (No. 2-81-119-CR, May 2, 1984).

We granted the State's petition for discretionary review to determine the correctness of the holding of the Court of Appeals. ¹

In Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875, 877, 878 (1954), a murder case where the appellant personally testified he acted in self-defense, this Court stated:

"The defense may offer testimony as to any specific act of violence or misconduct which evidences the violent character of the deceased under the following conditions:

"If offered for the purpose of showing the reasonableness of defendant's claim of apprehension of danger, it must further appear that the acts of violence or misconduct were known to the defendant at the time of the homicide.

"But if offered for the purpose of showing that the deceased was in fact the aggressor (not that the defendant thought the deceased was making or about to make an attack) the witness must know but it need not be shown that appellant had knowledge of the acts of violence of the deceased at the time of the homicide.

"Before any evidence of deceased's character for violence becomes admissible, however, there must be evidence of some act of aggression by the deceased which the character evidence tends to explain (such as drawing a gun or reaching for a pocket where one is usually carried).

See also Lewis v. State, 463 S.W.2d 186 (Tex.Cr.App.1971); Beecham v. State, 580

S.W.2d 588, 590 (Tex.Cr.App.1979), and cases there cited; Lowe v. State, 612 S.W.2d 579 (Tex.Cr.App.1981); Thompson v. State, 659 S.W.2d 649 (Tex.Cr.App.1983).

Appellant, under the third ground of error, urged the court erred in not admitting evidence of the police records of the deceased concerning arrests and investigations for resisting arrest, simple assault, carrying various prohibited weapons (including a gun and brass knuckles) and assault to murder, etc. The appellant offered these records to show "who was in fact the aggressor." The Court of Appeals agreed error was committed except as to the record pertaining to carrying a prohibited weapon which is not per se a "violent" or "aggressive" act of and by itself. Johnson v. State, 650 S.W.2d 414 (Tex.Cr.App.1983); Thompson, supra at p. 654.

After an examination of the record, we cannot conclude the Court of Appeals was correct. After the State rested its case-in-chief, and in the jury's absence, the prosecutor called the court's attention to the fact that he believed the appellant expected to offer evidence of the "criminal nature" of the deceased by witnesses other than the appellant. The court expressed the opinion the character and reputation of the deceased was not relevant at that point. Appellant's counsel stated the evidence of the police records clerk and Officer Bill Cummings would go to show that the deceased was an aggressive type person in certain instances, whether the appellant knew about those instances or not. The court indicated he would not permit the evidence "at this stage" but that counsel could perfect bills of exception as to such evidence.

Thereafter at no time during the trial did appellant call as a witness the police records clerk or attempt to lay the proper predicate for the introduction of the police records. At no time was an informal bill of exception perfected nor was there a proffer of evidence made. See Article 40.09, § 6(d)(1), V.A.C.C.P.

After sentencing, the appellant filed a "formal" bill of exception. It was neither approved nor qualified by the trial judge. It was not acted upon at all. Thus it was apparently approved under Article 40.09, § 6(a), in effect at the time (1980). The bill shows on its face that the evidence contained therein was never presented to the trial judge during the trial. It reflects what Virginia Gwinner, police records clerk, would have testified concerning the predicate to the admissibility of some 40 odd pages of police records attached. It then stated the exhibits would have then been offered into evidence.

Although a timely filed bill of exception not acted upon by the trial court is deemed approved without qualification, a bill of exception must be complete within itself and must stand or fall by its own allegations and must plainly set out any error sought to be preserved for review. Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1980).

Article 40.09, § 6(a), provides in part that:

"(a) A party desiring to have the record disclose some action, testimony, evidence, proceeding, objection, exception, or other event or occurrence not otherwise shown by the record may utilize a bill of exception for this purpose." (Emphasis supplied.)

It is clear that a formal bill of exception may be used to reflect an event or occurrence during the trial not otherwise shown by the record, but not an event that did not occur. The error, if any, was not preserved for review. Still further, as earlier noted, the only discussion about the admissibility of the police reports came immediately after the State rested his case-in-chief. The court indicated he would not admit the evidence "at this stage." At that point appellant's defense of self-defense had not been established, and as Dempsey made clear, before evidence of deceased's character for violence becomes admissible there must be evidence of some act of aggression by the deceased at the time of the offense which the character evidence tends to explain, such as drawing a gun or knife or reaching for a pocket where one is usually carried. The trial court's ruling was not in error at the time. If later evidence called for a different ruling, the police reports were not again...