Hintz v. State

• Citation: 396 S.W.2d 411
• Decision Date: 27 October 1965
• Docket Number: No. 38426,38426
• Parties: Harold C. HINTZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 411

396 S.W.2d 411

Harold C. HINTZ, Appellant, v. The STATE of Texas, Appellee.

No. 38426.

Court of Criminal Appeals of Texas.

Oct. 27, 1965.

Rehearing Denied Dec. 15, 1965.

Glenn Hausenfluck, Fort Worth, for appellant.

Doug Crouch, Dist. Atty., Roland H. Hill, Jr., Albert F. Fick, Jr., and Truman Powers, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is murder; the punishment, death.

The state's evidence shows that appellant and the deceased were husband and wife. The two lived in a room which they rented from Mr. and Mrs. W. D. Yates at 905 Southland in the city of Fort Worth. On Sunday afternoon, February 16, 1964, Mr. and Mrs. Yates saw the deceased leave the premises, which was the last time they saw her alive. At such time, appellant was inside the house and the next time he was seen by either of them was on February 27, when Mr. Yates saw him, early in the morning, asleep in his automobile, parked a block away from the house. When Mr. Yates asked him about his wife appellant stated that she had been staying with a friend who was sick. Yates then returned to the house and called the deceased's mother. Two hours later the mother and a daughter came to the Yates's home. Mr. Yates then unlocked the door to appellant's room and the three went inside. Nothing unusual was found in the room, and they all left. Later in the afternoon, Mrs. Yates came home from work and went into appellant's room, where she raised up the bedspread and could see blood. She realized that something was under the bed, and ran out. Mr. Yates then entered the room and found the deceased's body, wrapped in a blanket, lying on the floor under the bed.

When found, the deceased's body was lying on its back, with visible cuts on the face and lips. The head and hair were matted to the floor with blood. An examination of the bed revealed that the bedclothes were bloody, and there were pieces of glass in the bed. Broken pieces of what appeared to be a water bottle were found under the pillow. A number of beer cans were also in the room.

An autopsy was later that day performed upon the deceased by Dr. Feliks Gwozdz, a licensed physician and pathologist. Dr. Gwozdz testified that in the examination he found multiple bruises and lacerations over the facial features and head; that in his examination of the throat and larynx area he found a deeply discolored area beneath the laryngeal region with indentation and very distinct markings going toward the area behind both ears; and that he found, when he opened the area, a fracture of the left part of the hyoid bone, which is the bone that supports the larynx and also the tongue. Dr. Gwozdz testified that, from the autopsy, he determined that the cause of the death of deceased was generalized anoxia due to strangulation and that the deceased must have been dead for several days. The doctor further stated that he was unable to determine by what means the strangulation occurred and that it was possible that the deceased was strangled by the hands of an individual or by the use of a cord.

It was further shown that appellant was arrested at approximately 3 a. m. on February 28, 1964, after he was discovered, apparently asleep, in his automobile, parked about three blocks from the residence at 905 Southland. Fifteen minutes later he was registered in jail. At 3:10 p. m. on the same day, appellant made and signed a written statement to Officer E. L. Harrison in which he admitted killing the deceased.

The statement was introduced in evidence as state's exhibit #11, and reads, in part, as follows:

'On the morning of February 17, 1964--around 8:30 A.M. after a night of drinking and arguing, I was so enraged that I picked up a heavy glass water bottle (refrigerator type) which we kept on the night stand, and struck my wife on the head with it. The bottle broke. She started screaming and I started choking her with my thumbs pressing into her throat. I did this to quiet her screaming. At this point I must have passed out and woke up approximately two hours later and looked over the side of the bed and my wife was lying on the floor on the east side of the bed clad in a pink robe and a pair of panties. Then I noticed an electric percolator cord wrapped around her neck. When I saw the cord I took it off of her neck. I either put this cord in the desk drawer or plugged it back into the outlet. I noticed that she did not move and I got sick and went to the bathroom. Then I came back and she still had not moved any. I drank a couple of beers then. I kept waiting for her to move and when she didn't move I presumed she was gone. I took the sheet off the bed and threw it over her and slid her under the bed on the east side of the bed. I drank some more beer and picked up some broken glass that was on the floor and put it in a trash sack by the night stand. There was some broken glass on the bed so I pushed it under the pillow on the west side of the bed. I put the spread over the bed and made the bed up. I drank the last of the beer so I left the apartment to get some more beer. I returned to the apartment again late Monday night, February 17, 1964. I spent the night there, sleeping on top of the bed. I left on Tuesday morning and drank some more beer. I do remember spending several nights sleeping in my car. I returned to the apartment on Friday morning, February 21, 1964--and cleaned up and left the apartment again. This was the last time I was in the apartment. I spent the rest of the time sleeping in my car at night.'

Appellant did not testify or offer any evidence in his behalf.

At the conclusion of the state's case, the court, in response to appellant's motion for an instructed verdict of not guilty, withdrew from the jury's consideration the second count of the indictment and submitted to them the first and third counts.

In the first count it was alleged that appellant killed the deceased 'by choking and strangling her with his hands,' and in the third count it was alleged that he killed her 'with a water bottle or with a glass container or a glass jug or in some way or manner and by some means, instruments and weapons the exact nature of which is unknown to the Grand Jury.'

The jury, in response to the court's charge, returned a general verdict of guilty.

We overrule the contention predicated upon appellant's bill of exception #3 that the court erred in overruling his motion for an instructed verdict of 'not guilty.'

The testimony of Dr. Gwozdz is sufficient to support a finding that the deceased died as a result of being strangled by the hands of an individual.

In the present case there is evidence to support a finding of the guilt of appellant under either the first or third count of the indictment. Under the record, the court did not err in submitting both counts to the jury and permitting the jury to return a general verdict of guilty without designating under which count guilt was found.

In Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178, we said:

'Only one offense was charged and that was murder. Where a general verdict is returned, and the evidence is sufficient to support a finding under either of two counts submitted, as there was in the instant case, no error is presented. [Cases cited]'

By bill of exception #2, appellant complains of the court's refusal to grant his motion for a continuance, sought on the ground that he and his attorney had not had an opportunity to examine and study the report of a psychiatrist who had been appointed by the court to examine appellant.

The record reflects that the report was filed in the cause on September 16, 1964, the date the trial commenced. In the report, the psychiatrist, Dr. Harold B. Mindell, stated, in effect, that he found no evidence of insanity.

In the recent case of McIntyre v. State, 172 Tex.Cr.R. 510, 360 S.W.2d 875 (certiorari denied 371 U.S. 867, 83 S.Ct. 130, 9 L.Ed.2d 104), it was held that no error could result from the court's refusal to grant a continuance on the grounds that the report of a psychiatrist had not been received by appellant's counsel prior to trial, when the report subsequently received...