Jackson v. State, 45102
| Decision Date | 12 July 1972 |
| Docket Number | No. 45102,45102 |
| Citation | 482 S.W.2d 864 |
| Parties | Patricia Ann JACKSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Percy Foreman, Houston (on appeal only), Dick DeGuerin, Houston (on appeal only), for appellant.
Robert O. Smith, Dist. Atty., and Michael J. McCormick, Asst. Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction of murder. The jury assessed the punishment at twelve years.
The sufficiency of the evidence is challenged.
Harvey L. Merida and Edward Lee Warren were the key witnesses for the State. Merida testified that on May 2, 1970, he went to bed at Warren's house around midnight after Warren had left. Sometime between 5:00 and 6:00 a.m., Irving Wayne 'Bird' Fowler, the deceased, the appellant and another woman arrived. Merida got up and had a few drinks with them before the second woman left. Because the appellant was 'sarcastic' with the deceased, Merida went back to bed leaving the two alone.
Merida also testified that the next thing he recalled was the appellant shaking him and saying, 'Wake up; I just shot Bird.' Merida went into the other room and found Fowler slumped on the sofa with a gun in his hand. The appellant was crying, and Merida removed the gun from Fowler's hand and put it somewhere in his bed.
Merida placed Fowler in the front seat of his car and appellant got in the back. While Merida drove Fowler to the hospital, the appellant 'was crying and she was talking about losing her kids for what had happened.' Merida testified that appellant also said, 'I am sorry,' and, 'I loved him, but he kept shooting me over the edge.' Merida explained this latter phrase as slang for hurting someone and that it also meant or showed jealousy.
After taking Fowler to the hospital Merida took the appellant with him to get Warren. While returning with the appellant and Warren to the hospital Merida testified that Warren asked the appellant, 'Why did you shoot Bird?' The appellant replied, 'He kept shooting me over the edge.' Fowler died in the hospital from what the testifying pathologist stated was bleeding as a result of a gunshot wound.
Around 4:30 p.m. on May 3, Merida called Sergeant Kelton at the Austin Police Department and told him he was bringing him something. Merida then got the pistol and shells and took them to the officer.
On cross-examination Merida testified that the appellant had always maintained the shooting was an accident.
Edward Lee Warren, whose nickname was 'Lee Baby,' testified that on May 3, 1970, Merida came to get him at a friend's house around 9:00 a.m. and told him the appellant had shot 'Bird.' On the way to the hospital the appellant said she shot him 'because he kept shooting her over the edge.' Warren also testified that she said something about losing her little girl. He did not recall her saying anything about an accident until after the date of the shooting when the appellant called him and said it was an accident. On cross-examination Warren stated that the appellant might have told him it was an accident on the way to the hospital. Warren also testified that appellant carried a gun with her. Prior to May 3, she had pulled the gun and pointed it at him and possibly at Fowler. He had heard appellant and Fowler when they were having arguments.
In her third ground of error, appellant contends the trial court erred in excluding evidence of the bias and prejudice of Warren. The trial court refused to allow appellant to cross-examine Warren regarding his activity in distributing certain handbills and about animus, bias or interest. A copy of a hand printed handbill which had been reproduced was introduced before the court for the appellant's bill of exception. It reads as follows:
The 'BLACK' TRIAL
Pat Ann Jackson (Accused Murderess of ERVIN WAYNE FOWLER) 'BIRD'.
COME AND SEE JUSTICE IN YOUR VERY OWN CITY.
'MONDAY'
May 24--9:30
'COUNTY COURTHOUSE'
On cross-examination of Warren the following occurred:
Objection was made and the jury retired. Then the following took place:
'
The appellant's attorney offered the handbill into evidence. An objection by the State was sustained. The jury was returned and appellant's counsel asked Warren if he had been 'going out attempting to obtain witnesses against Mrs. Jackson, attempting to find them and attempting to get people to testify against her.' Again Warren denied having done this. He was asked: 'Have you been going out and talking about this case to various people, attempting to have them come up here into the courtroom?' and he answered, 'Yes.'
On redirect examination Warren testified as follows:
On recross-examination Warren was asked: 'You have been going all over town, have you not, telling people that you wanted to see Mrs. Jackson convicted, and you would do anything in your power to see that it was done?' He answered, 'No.'
Later, for the purpose of the bill of exception, Mrs. Carrie Denman testified that she had seen Warren passing out the handbill.
In Ogburn v. State, 101 Tex.Cr.R. 180, 274 S.W.2d 638, Judge Berry wrote for the Court:
'It is well settled that motive or animus that actuates a witness at the time of his testimony is never regarded as immaterial or collateral matter, and the adverse party has the right to prove any motive or declaration of a witness which will tend to show his bias, interest or prejudice, or any other mental condition of the witness which in any manner tends to affect his credibility.'
The Court stated the same rule in Curry v. State, 72 Tex.Cr.R. 463, 162 S.W. 851, 857, and wrote:
Wide latitude is allowed in cross-examination when its purpose is to bring out facts which will give to the jury the attitude, motive and interest which may be affecting the testimony of a witness. Blake v. State, Tex.Cr.App., 365 S.W.2d 795. See 1 Branch's Ann.P.C.2d, Section 185, pages 192--195, and the many cases there cited.
In the present case Warren admitted while testifying a desire to see the appellant convicted. He further admitted talking to various people about the case...
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