Gibson v. State

• Citation: 726 S.W.2d 129
• Decision Date: 04 March 1987
• Docket Number: No. 62720,62720
• Parties: Willie Burke GIBSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 129

726 S.W.2d 129

Willie Burke GIBSON, Appellant, v. The STATE of Texas, Appellee.

No. 62720.

Court of Criminal Appeals of Texas,

En Banc.

March 4, 1987.

Frank B. McGregor, Hillsboro, for appellant.

Neal T. Jones, Jr., Dist. Atty., Hillsboro, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S THIRD MOTION FOR REHEARING

W.C. DAVIS, Judge.

A jury found appellant guilty of the offense of murder and assessed punishment at life imprisonment in the Texas Department of Corrections.

The record reflects that appellant had been previously convicted and sentenced to life imprisonment in the same cause. However, the trial judge subsequently granted appellant a new trial pursuant to Art. 40.09, V.A.C.C.P., prior to the 1981 amendment. During appellant's re-trial in the instant case the prosecutor impermissibly cross-examined appellant about his former trial and the punishment he there received. See Art. 40.08, V.A.C.C.P. ¹

On this, the third motion for rehearing, the State argues that our opinion on the second motion for rehearing erred in failing to require an objection in order to preserve error for violations of Art. 40.08, V.A.C.C.P. We have re-examined the issue and believe our prior opinion was in error.

Appellant first mentioned his prior incarceration during direct examination. Then, in a non-responsive answer to the State's cross-examination appellant referred to his former conviction in the same cause. The State went on to ask several other questions about appellant's prior incarceration without objection from appellant's counsel. Specifically, the following occurred,

Q. [By appellant's counsel]: Mr. Gibson, directing your attention to April 2nd, 1978, do you remember that day?

A. I remember.

Q. As a matter of fact have you been locked up since that date?

A. Right.

Q. Now, where are you now?

A. I am in the Hillsboro jail.

* * *

* * *

Q. [By State's attorney]: Mr. Gibson, I think you testified that you have been in the Hill County jail for one year?

A. No, I have been in the State penitentiary for life.

Q. What cause was that on?

A. This one.

Q. It was tried once before, wasn't it?

A. Right.

Q. The jury gave you life, didn't they?

A. Right.

Q. Okay. You have been in the pen now for how many months?

A. I left there in--I say five months.

Q. Okay. And you have been back since the judge granted you a new trial?

A. Right. Came back on the 10th of March.

Q. Okay. That trial took place right here in this courtroom?

A. Yes, sir.

Q. With a jury that sentenced you to life?

A. Sir?

Q. Was it a jury sitting up here that also sentenced you to life imprisonment?

Article 1.14, V.A.C.C.P., reads:

The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.

By failing to object to the State's cross-examination appellant effectively waived his right to have the facts pertaining to his previous trial kept secret from the jury.

Generally, appellate courts will not consider any error which counsel for the accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court. See Rogers v. State, 640 S.W.2d 248 (Tex.Cr.App.1982) (on rehearing); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.), cert. denied 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). This Court has held that a defendant can not raise for the first time on appeal a ground of error alleging that his constitutional rights guaranteed by the Sixth and Fourteenth Amendments were violated by improper identification procedures. See Dunlap v. State, 477 S.W.2d 605 (Tex.Cr.App.1971). Similarly, in Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981) (on rehearing), this Court held that the failure to object to the improper exclusion of a prospective juror in a capital murder case constituted waiver of that error. In Darland v. State, 582 S.W.2d 452 (Tex.Cr.App.1979), the Court held that errors concerning the improper introduction of evidence under the fourth amendment were waivable lacking timely trial objection. See also Dunavin v. State, 611 S.W.2d 91 (Tex.Cr.App.1981); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). Also, in Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972), the Court held that the contemporaneous objection rule applied in appeals from orders revoking probation.

The holdings of these cases and many others are based upon the rationale requiring contemporaneous objections:

... a primary purpose of requiring timely specific objections is to apprise the trial court of a party's complaint and thereby afford the judge an opportunity to rule, [Because of this] it is elementary that only those grounds which have been urged in the court below may be presented to this court for appellate review.

Darland, supra, 582 S.W.2d at 455.

We conceive of no reason to hold statutorily based errors, even those arising under Article 40.08, to any lesser requirements for preservation of error. Because no objection was made in the instant case the trial court was not apprised of appellant's complaint and was thus not given a chance to avoid or correct it. To the extent that Wyatt v. State, 58 Tex.Cr.R. 115, 124 S.W. 929 (Tex.Cr.App.1910); Eads v. State, 74 Tex.Cr.R. 628, 170 S.W. 145 (Tex.Cr.App.1914), and Butler v. State, 147 S.W.2d 1087 (Tex.Cr.App.1941), suggest that it is the trial court's duty to intervene in cases where Article 40.08 has been violated regardless of defense counsel objections, they are overruled.

The instant case is analogous to Miracle v. State, 604 S.W.2d 120 (Tex.Cr.App.1980). In Miracle, supra, the defendant introduced into evidence certain medical records which contained information concerning his prior trial in the same cause. During jury argument the State's attorney referred to this information without objection by defense counsel. On appeal, the defendant contended that this violated Article 40.08, V.A.C.C.P. This Court declined to reverse the case, stating,

In the instant case the appellant introduced the evidence to which the prosecutor made reference in his argument which was unobjected to. The complaint concerning the argument is raised for the first time on appeal. Under the circumstances in which the disclosure was made, the lack of objection, etc., the appellant is in no position to complain.

Miracle, supra, 604 S.W.2d at 128.

Similarly, in the instant case appellant initially referred to his former conviction with a nonresponsive answer to the State Attorney's question seeking to make clear evidence introduced during appellant's direct testimony. Subsequently, appellant's counsel voiced no objection as the State's Attorney examined him further as to his prior trial and sentence. For this reason appellant waived this ground of error.

Due to our disposition of the State's motion for rehearing we now address appellant's remaining grounds of error.

On the morning of April 1, 1978, appellant, T.V. Pereida (the deceased in the instant case), Willie Robinson and Elmer Ray Terrell met at Robinson's house in Bynum and began drinking. Shortly thereafter, the four men drove to West where they continued drinking and shot several games of pool at a small local bar. Later that afternoon they returned to Robinson's house.

The evidence is not clear as to exactly how much alcohol the men consumed. However, the evidence shows that each man drank at least five or six beers and several shots of whiskey over the space of two or three hours. An autopsy on the deceased revealed a blood alcohol content of 0.35%, an amount sufficient to kill one-half of the adult population.

Just prior to their return to Bynum, appellant became extremely angry with Pereida. This dispute led to an altercation inside Robinson's house where appellant pushed Pereida to the floor. Beatrice Robinson, the wife of Willie Robinson and appellant's aunt, testified that she had never seen appellant act as he did on that afternoon, that he acted "like a crazy man", and that his eyes appeared glazed over.

Appellant was persuaded to leave Robinson's house and as he did so, Pereida followed him outside. The altercation continued with appellant shoving Pereida down in the driveway. Appellant then got into his car and backed up so that he could make a U-turn in the driveway and bring the car forward into the street. However, when appellant attempted this turn he struck Pereida, killing him.

Appellant testified that he had been suffering from memory loss and "blinking out" spells and he did not remember running over Pereida. He also said that if he did indeed kill Pereida by hitting him with a car he did not intend to do so. Appellant wavered when asked whether he believed he was intoxicated, stating that he did not believe he had consumed enough alcohol to cause intoxication. However, he also testified that he felt intoxicated and did not remember how much alcohol he consumed that day.

Appellant argues that it was error for the trial court to refuse to include his requested instruction on the lesser included offense of involuntary manslaughter. He argues the evidence presented during the guilt phase of trial raised the possibility that he, if guilty of an offense at all, was guilty only of involuntary manslaughter. Specifically, appellant points to the evidence that all four men had been drinking heavily throughout the day, that Pereida was found to have a blood alcohol content of 0.35%, that he testified that he believed it possible that he was intoxicated, and that Beatrice Robinson testified that appellant acted like a crazy man and his eyes appeared glazed over.

In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), this Court held that jury charge error should be reviewed by appellate courts in accordance with Art. 36.19, V.A.C.C.P. First, the...