Littleton v. State, 40051

• Decision Date: 25 January 1967
• Docket Number: No. 40051,40051
• Citation: 88 S.Ct. 115,419 S.W.2d 355
• Parties: Martin Steven LITTLETON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 355

419 S.W.2d 355

Martin Steven LITTLETON, Appellant, v. The STATE of Texas, Appellee.

No. 40051.

Court of Criminal Appeals of Texas.

Jan. 25, 1967.

Rehearing Denied March 8, 1967.

Certiorari Denied Oct. 9, 1967.

See 88 S.Ct. 115.

W.C. Shead, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder without malice; the punishment, three years.

Notice of appeal was given on January 29, 1965, but because of numerous extensions of time granted, the record did not reach this Court until November 30, 1966.

Since this appeal is controlled by Vernon's Ann.Code of Criminal Procedure in effect prior to January 1, 1966, a brief statement of the facts is required.

Appellant, 55 years of age, had been married to the 34 year old deceased for sixteen years. About a week prior to the homicide, appellant became suspicious that deceased was having an illicit relationship with one John Brooks, a 28 year old single man who rented and resided in a small house at the rear of his home. At dusk on the night of the homicide, deceased left with John Brooks and several very small children to go to a drive-in movie. Witnesses for the State said they went with appellant's knowledge and consent. Appellant testified that he did not know that Brooks was with the deceased until after they left. Appellant concealed his automobile so that it would appear that he was not at home. Brooks, the deceased and the sleeping children did not return home until 3:00 a.m. By this time appellant was considerably agitated and instead of confronting them and demanding an explanation, he absented himself from the house, but kept it under surveillance and repeatedly peeped through the windows. In the meantime he armed himself with a shot gun and when he saw what appeared to him to be two naked bodies close together in deceased's bedroom, he fired one shot through the window. It was shown that pellets from this blast hit both deceased and Brooks. Appellant then entered his home and fired two more shots in the dark. Both deceased and Brooks were killed instantly. In answer to appellant's call, the police arrived and found Brooks naked from the waist up in the bedroom and deceased clad only in her panties and a sweater in the same room.

This prosecution was for the slaying of appellant's wife. We find the evidence sufficient to support the conviction and will discuss the contentions raised by brief and in argument.

It is first contended that the court erred in failing to grant a mistrial when the prosecutor allegedly displayed a picture of Brooks' bullet ridden body to the jury. The picture has been brought forward in this record, but the proof that the jury saw it is meager. The picture was not admitted in evidence or ever handed to the jury. When objection was made that the prosecutor had displayed it to the jury, the Court promptly inquired if any member of...