Jefferson v. State, 38552

• Decision Date: 08 November 1972
• Docket Number: No. 38552,38552
• Citation: 487 S.W.2d 331
• Parties: Larry Lee JEFFERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 331

487 S.W.2d 331

Larry Lee JEFFERSON, Appellant, v. The STATE of Texas, Appellee.

No. 38552.

Court of Criminal Appeals of Texas.

Nov. 8, 1972.

Rehearing Denied Dec. 20, 1972.

Joe E. Turner, of Turner & White, Houston (on appeal only), for appellant.

Carol Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an out of time appeal. The record reflects that on April 3, 1964, appellant was convicted of murder; the punishment was assessed at ninety-nine years. The original appeal resulted in affirmance in Jefferson v. State, Tex.Cr.App., 395 S.W.2d 611. Such opinion held that nothing was presented for review since no statement of facts or formal bills of exception were properly before this court. On April 19, 1972, this court found that appellant, an indigent, had been deprived of an effective appeal and ordered preparation of the record, that appellant may be accorded an out of time appeal.

The record reveals that sometime between 9:30 P.M. and 11:00 P.M., September 7, 1963, the deceased, James Evans, and J. C. Mathis approached a lounge known as Estes Lounge or Zu Zu's Place in Houston. As they approached the entrance, they met the appellant who was leaving. An argument ensued between the three and, as a result thereof, appellant shot both Evans and Mathis. Evans died as a result of the gunshot wound; Mathis recovered and testified in behalf of the state. Although it is undisputed that appellant knew Mathis as having a reputation for violence; that he had been convicted of carrying a prohibited weapon; and had, on two prior occasions, attempted to do serious bodily harm to appellant, ¹ there was conflicting testimony concerning the nature of the argument that preceded the shooting.

The evidence, viewed in light most favorable to the verdict, shows that when they met, Mathis tapped appellant on the shoulder and gave him a friendly greeting, saying, 'Hi, Larry;' that appellant replied, 'Get your hands off of me and I haven't forgot what your brother did to me;' and that appellant then shot both Evans and Mathis without justification.

Appellant complains of the following instruction which was included in the court's charge:

'Any testimony that the defendant or any other witness had been convicted or any case or cases was submitted so that you may determine whether it aids you in passing upon the credibility of the defendant or other witness as a witness; and you are Only authorized to consider it for that purpose alone, if you think it does effect his or their credibility.' (Emphasis added)

No objection was addressed to the court's charge at time of trial, as is required by Article 36.14, Vernon's Ann.C.C.P. (formerly Article 658, V.A.C.C.P., in effect at time of his trial) and therefore nothing is presented for appellate review. Nevertheless, appellant contends that the trial court committed fundamental error in instructing the jury not to consider the conviction of Mathis except for the purpose of passing upon his credibility.

Appellant argues that in considering whether or not he acted in self-defense, the jury was entitled to consider the conviction of Mathis for unlawfully carrying...