Ewalt v. State, 35042

• Decision Date: 02 January 1963
• Docket Number: No. 35042,35042
• Citation: 363 S.W.2d 279
• Parties: Jimmy Wilbur EWALT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 279

363 S.W.2d 279

Jimmy Wilbur EWALT, Appellant, v. The STATE of Texas, Appellee.

No. 35042.

Court of Criminal Appeals of Texas.

Jan. 2, 1963.

Charles W. Tessmer, Dallas, on appeal, for appellant.

Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

Unlawfully carrying a pistol is the offense; the punishment, one year in jail.

Officer J. K. Slemmons testified that he, with his partner, J. W. Barnett, was cruising in the 100 block of North Haskell, a street in Dallas, Texas, about 10:55 in the evening, August 30, 1960. The officers testified that they heard a disturbance at a night club and heard someone yell "I will knock your damn head off" or "I will blow your head off" or something to that effect. The officers further testified that they saw a man run south on Haskell and into an alley and that he appeared to have a revolver of some type in his hand. The officers pursued the man, whom they identified as appellant, and found him hidden in a doorway. Finding no weapon on the person of appellant, Officer Slemmons, in the company of U. S. Marshal Dick Bagley, searched the alley and found nothing. Officer Slemmons made a second search and found a pistol in the bottom of a trash can. The pistol was loaded with six rounds of ammunition, the same being identified at trial by Officer Slemmons and introduced in evidence. U. S. Marshal Dick Bagley testified that he was traveling south on Haskell when he heard a woman scream, and he saw a man with a pistol, holding it on another man who was pleading "Please don't',' and a woman was also pleading with the man holding the pistol. Marshal Bagley urther testified that before he could Bagley further testified that before he could pistol ran down the alley and as he, Bagley, started to get a light from his car he saw the police car. The marshal identified the appellant, at trial, as the man with the pistol. Officer Barnett testified that the persons in front of the night club on his arrival there, after he and his partner found and arrested the appellant, were Marshal Bagley, Bill McNees, Floyd Mason, and and unidentified woman.

Appellant did not take the stand but his brother, Teddy Adele Ewalt, testified to a conversation at some unspecified prior date at a drive-in in which McNees claimed appellant owed him some money and he would collect it one way or another. The witness attempted to testify to a prior relationship between appellant's wife and Bill McNees, which evidence was excluded. On offer of proof, however, the witness could testify only to a common knowledge, having no personal knowledge of his own, and, further, that he would have considered the conversation about the collection of money owed (to which he had already testified before the jury retired) as a threat to kill, and that he had never seen his brother, the appellant, come home with any marks from any beating.

Witness Guy Glasgow, Assistant District Clerk of Dallas County, Texas, brought a record of a final judgment in a cause between Jimmy Ewalt and Patricia Ann Ewalt, dated October 17, 1960. Appellant's counsel offered the judgment or decree of the Domestic Relations Court on the theory of self-defense, which evidence was excluded by the court as not material.

Appellant's counsel urges four propositions as error, all preserved by informal bills of exception. There are no formal bills.

Appellant's first contention is that the court erred in not directing a mistrial when the prosecutor waived an affidavit of appellant's wife before the jury during closing argument, the affidavit never having been introduced or offered in evidence. The record reflects that the prosecutor stated: 'He talks about not knowing who this is, not knowing who this woman is. Well, I will define that, Ladies and Gentleman. That was his wife; I have a statement right here from her saying she doesn't want to prosecute.' (Emphasis supplied.) We observe that appellant's trial counsel had earlier said:

'* * * it will shock and stagger your imagination when you walk out of this community and find out what the true facts of the lawsuit are, because you can reasonably and logically deduce that no man, you, and you, and anybody else, would take a woman in custody for an offense out there, when that same individual be cited as to that, and take that individual to jail and charged and never be able to know who that person is. Why would they do that? Why would they do that? What is the skillfulness of the manoeuvre? Why not simply tell us who this woman is? Why not do it? All those records--they jump on me and say they are available to you * * *. They are, by subpoena only. When I walk to that jail house they tell me 'You are in error, you cannot see our records.' Why? Where is this thing we look for, the reason to withhold this information as to who this woman was? It was later, mind you, had committed an offense subsequent to that, was placed in the car and subsequently jailed for it. Why do they want to withhold it? Why do they? How can I subpoena an unknown person? I know and you know why they wouldn't let those people, down there yesterday, one of them, tell us who this woman was. You can reasonably deduce and speculate and surmise this woman was Patricia Ann Ewalt * * *.' (Emphasis supplied.)

Appellant relies upon Cole v. State, 171 Tex.Cr.R. 255, 347 S.W.2d 719, to support his contention that "The unsworn statement of State's counsel to the jury of a material fact adverse to defendant which was not put in evidence during the trial will require the judgment of conviction to be set aside." We agree with the principle enunciated in Cole. We think, however, that in the case at bar the argument that appellant complains of was occasioned, justified, or provoked by his own trial counsel and was invited by him. We see no error in the remarks. Dupree v. State, 80 Tex.Cr.R. 211, 190 S.W. 181; Kessler v. State, 136 Tex.Cr.R. 340, 125 S.W.2d 308; Lerma v. State, 150 Tex.Cr.R. 360, 200 S.W.2d 635; Wells v. State, 153 Tex.Cr.R. 331, 220 S.W.2d 148.

We notice that the cautious trial judge sustained an objection to and instructed the jury to disregard the final remark of the prosecutor to the effect that the woman did not want to prosecute. If the remark was improper, it is difficult for us to conceive how a desire not to prosecute could be viewed as prejudicial. Any injury is obviated by the court's ruling unless the nature of the remarks is such as to obviously impair the rights of the accused. Zepeda v. State, Tex.Cr.App., 353 S.W.2d 221.

Appellant urges as his second proposition of law that the trial court erred in excluding evidence of the circumstances that might have led appellant to carry a weapon, it being his position that such evidence was relevant in mitigation of punishment. He attempted to show through one Teddy Adele Ewalt, his brother, that the wife of appellant, or former wife, was involved with one Bill McNees and that McNees had threatened appellant's life. The trial court sustained an objection to this testimony as being immaterial. The jury was retired, and appellant perfected his bill. No competent evidence to this effect was produced in the bill of exception, as the witness knew nothing of his own knowledge...