Haynes v. State, 61341
| Decision Date | 03 February 1982 |
| Docket Number | No. 61341,61341 |
| Citation | 627 S.W.2d 710 |
| Parties | Edgar Dewey HAYNES, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Russell C. Busby, Amarillo, for appellant.
Harold L. Comer, Dist. Atty., Pampa, Robert Huttash, State's Atty., Austin, for the State.
OPINION
This is an appeal from a conviction for the offense of aggravated assault. The case was tried in Gray County after a change of venue from Wheeler County. Punishment was assessed as imprisonment for two years.
The appellant presents ten grounds of error. He contends the following: the sheriff made prejudicial remarks about the appellant in the presence of prospective jurors immediately prior to jury selection; bloody clothing was erroneously admitted in evidence; evidence of two extraneous offenses was improperly admitted; a character witness was improperly impeached; an agreement to pretrial discovery was violated when the State presented the testimony of a witness without informing the appellant that she was a possible witness; a prior inconsistent statement of another witness was not admitted in evidence; the appellant's testimony was unduly restricted; the punishment phase was conducted outside the presence of the jury; and, the prosecutor made improper jury argument during the penalty phase of the trial.
The evidence reveals that both the appellant and the complainant attended a party on the night of March 11, 1978. Each had been drinking. During the course of the evening the appellant and the complainant became engaged in a heated argument. Thereafter the appellant left the party. Later in the early morning hours the two men encountered each other at an all-night restaurant. Another heated argument ensued. Subsequently both men "stepped outside" and the appellant shot the complainant.
The appellant first argues that his motion for mistrial was erroneously overruled by the trial court. During the course of the trial the appellant presented testimony of Mrs. Gowdy outside the presence of the jury. Mrs. Gowdy testified that she overheard Sheriff Dorman talking to another individual prior to the selection of the jury. Sheriff Dorman said that the appellant was connected with the Dallas Mafia and that anyone carrying a gun ought to be automatically in trouble. Mrs. Gowdy added that the sheriff made the comment in the presence of prospective jurors and witnesses and could have been heard by them. However, she did not know if the others had, in fact, overheard the comment. The trial court after hearing the testimony asked the appellant if he would like to question the panel and determine if they had heard the remark. The appellant declined the offer stating that the questions would only draw the remark to the attention of the jury. The appellant now claims that he was denied a fair trial because of the comment. However, we are unwilling to speculate whether or not any of the members of the jury heard the sheriff's statement. The appellant has failed to demonstrate that he was harmed by the comment. The ground of error is without merit.
The appellant asserts next that bloody clothing was improperly admitted in evidence. The complainant during the trial identified the shirt and down vest he was wearing on the night of the shooting. After pointing out the hole caused by the bullet, the two pieces of clothing were admitted in evidence. The appellant contends that the clothing was admitted solely to inflame the minds of the jury since there was no issue in dispute. If a verbal description of the victim's body, clothing, and scene of the offense is admissible then the victim's clothing, even though bloodstained, is likewise admissible. Bradford v. State, 608 S.W.2d 918 (Tex.Cr.App.1981); Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981). In the present case a description of the wound and the scene of the offense was admissible to throw light on the offense and reveal its general nature. Therefore, the clothing was also admissible. The trial court did not err in admitting the shirt and vest in evidence.
The appellant complains that error occurred in two separate instances when evidence of the two extraneous offenses was admitted in evidence. However, in both instances the appellant failed to object to the admission of the evidence. Nothing is presented for review.
The appellant also complains that a character witness was improperly impeached. Again, however, no objection was made by the appellant and nothing is presented for review.
In his next ground of error the appellant contends that the testimony of Lisa Jernigan should have been suppressed. Prior to trial the State had agreed to furnish appellant's counsel with a list of all witnesses that the State would use in its case in chief. Thereafter the State called Mrs. Jernigan, whose name did not appear on the list. The appellant objected and claimed surprise. The trial court declared a recess until the next day to allow the appellant time to investigate. The next day Mrs. Jernigan testified that she saw the appellant with his pistol inside the restaurant just prior to the shooting.
We cannot agree with the appellant that it was error not to suppress the testimony. We first note that a recess was declared to allow the appellant time to prepare for Mrs. Jernigan's testimony. Additionally, we observe that after the recess the appellant made no further objections to the testimony. Finally, the appellant testified to substantially the same facts as Mrs. Jernigan. He admitted that he had taken the weapon with him inside the restaurant. He admitted shooting the complainant. The ground of error is overruled.
The appellant next contends that the trial court erred in not admitting in evidence a written investigative report by Kirven Roper, an investigator for the district attorney. The appellant argues that the report was admissible to establish prior inconsistent statements. Jo Del Clancy testified that at the party the appellant was the aggressor. However, she was confronted with her statement to Roper in which she indicated that the complainant was the aggressor at the party. Roper also testified that Mrs. Clancy stated the complainant was not the aggressor. He was also confronted with the report. The appellant was allowed to read the report and question each witness about it; his complaint is to the fact that the report itself was not admitted in evidence.
The proper predicate for impeachment by prior inconsistent statements requires that the witness first be asked if he made the contradictory statement, it can then be proved by the prior inconsistent statement. However, if the witness admits the prior inconsistent statement, the prior statement is not admissible. Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979).
In the case at bar the following occurred when the appellant cross-examined Mrs. Clancy:
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