Davis v. State
| Decision Date | 15 December 1976 |
| Docket Number | No. 51855,51855 |
| Citation | 545 S.W.2d 147 |
| Parties | Mark DAVIS, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
The offense is assault with intent to murder without malice; the punishment, three years.
In a per curiam opinion decided March 17, 1976, the appeal in this cause was dismissed because sentence was untimely pronounced. Appellant has been resentenced and the appeal is reinstated.
Although the sufficiency of the evidence is not challenged, a recitation of the facts is necessary in order to understand appellant's contentions. Witness Brown testified that he and Bobbie Jean Wright were riding in Wright's car on December 9, 1972. Brown offered to buy some gasoline and they proceeded to a service station. Appellant put gas in Wright's car and Brown presented a credit card as payment. After Brown started to put the ticket in his billfold, he noticed a discrepancy in the amount of purchase. The ticket was imprinted by a machine at the top with 00750; however, the figures 172 55 were entered by hand on the bottom of the ticket next to the word Total. Brown stated he returned to the sales office to explain to appellant that a mistake had been made. Appellant said he had not made a mistake and told Brown to get out of there and pulled a pistol. Brown went across the street and called the police. He returned to the station and offered to pay cash. He said appellant refused the offer and told Brown not to tell him how to run his business. Brown called the police again. Upon returning to the service station, Brown asked another customer to look at the ticket. After the customer moved, appellant approached Brown and said he had told him to get away from the station. Brown said appellant then pulled a pistol and shot him in the neck. Brown stated he did not look at the pump and did not know the number of gallons of gas that he had purchased or the amount of purchase. Brown said he did not swear or curse at appellant and did not approach him in a violent manner.
Wright testified she waited in the car after Brown purchased the gasoline. It appeared Brown and appellant were arguing, but she did not hear what was said. When she entered the sales office, she said Brown and appellant were discussing the $172.50. She stated the purchase was for $5.00 or $5.51 and that her car would not hold $7.50 worth of gas. She said Brown went to the Dairy Queen to call the police. She offered to pay appellant for the gas and he refused. Wright stated she tried to call Brown's wife after Brown was shot, but appellant did not let her use the phone and appellant told her to get back or he would shoot her.
Witness Adger testified he was buying gasoline at the station at the time of the alleged offense. Brown asked Adger about the discrepancy on the ticket and Adger agreed that Brown would be charged with the figure at the bottom. He stated he did not hear Brown use abusive language or curse. Adger heard appellant say he didn't want to hear any more and saw appellant shoot Brown. Adger did not see any weapons other than the pistol used by appellant. He stated appellant waved the pistol in Wright's direction.
Appellant testified in his own behalf. He stated he had a third grade education and he could not read, but he could write his name and had been practicing figures and 'I could make them out as best I could.' He said he was working at his brother's service station the day of the offense and Brown purchased some gas from him. He stated the amount imprinted at the top of the ticket was the amount of purchase and he explained to Brown that was the amount he would have to pay. He said Brown was abusive and kept calling him 'Nigger'. Appellant called his brother, but he was not at home. Appellant said Brown threatened to kill him if appellant did not return the 'money'. Appellant said he gave the ticket back to Brown because he did not want any trouble. Brown left and appellant said the girl (Wright) was cussing and telling appellant what Brown was going to do. About 45 minutes to an hour later Brown returned. Appellant testified he asked Brown why he came back and Brown said, 'I come back to kill you.' Appellant stated he whirled around and shot Brown because he was afraid he would carry out the threat. Appellant said there were four more bullets in the gun and he could have shot Brown four more times. Appellant testified he gave Wright a dime to call an ambulance.
Appellant testified he had the gun because of a highjacking that occurred at the service station three weeks before the instant offense. Appellant's brother, W. T. Davis, corroborated appellant's testimony concerning the earlier highjacking and the amount of purchase as shown by the figure printed at the top of the ticket. Witness Davis stated the figure at the bottom indicated the amount of gas sold.
In his first ground of error appellant alleges he was improperly impeached at the guilt stage of the trial when the following occurred on cross examination:
'Q Now, Mr. Davis, on direct examination to the question your attorney was asking you, you told the man that you didn't want any trouble, that you had been in trouble before. What did you mean by that?
A Sir, the first time I got in trouble, the warden in Arizona--
Q The who?
A The warden, he was the man over the state penitentiary, because he told me, he said, and he got me the first job, and he's the one that's recommended me for the first job, and I know what it was, I don't want to go back to the penitentiary.
A I had been to the penitentiary for murder.
A Yes, sir.
Q And that's the only trouble that you were referring to?
A What do you mean?
Q That's the only trouble you have ever been in in the law?
A No, sir, you just told me awhile ago that I had been in trouble about my gun and things.
Q What do you mean by that.
A Well, I mean, I really don't understand you when you say is that the onliest trouble you been into. That's the first time I ever been to the penitentiary.
Q No further questions.'
Prior to this testimony a hearing was held outside the presence of the jury and it was shown appellant was convicted of second degree murder in Arizona in 1957. Appellant testified he was released in 1962. Appellant stated he was twice convicted in 1967 and 1971 in Dallas County for the misdemeanor offense of carrying a pistol, and in 1967 of misdemeanor driving while intoxicated. Certified copies of the judgment, sentence, affidavit, information and waiver of jury trial and plea of guilty for the three misdemeanor convictions were introduced at the hearing for the purposes of the record only.
In light of the adverse ruling at the close of the hearing outside the jury's presence which preceded the testimony now complained of, appellant was not required to object further when the...
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