Mahaffey v. State

• Decision Date: 05 May 1971
• Docket Number: No. 43516,43516
• Parties: Nancy Jane Owens MAHAFFEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 801

471 S.W.2d 801

Nancy Jane Owens MAHAFFEY, Appellant, v. The STATE of Texas, Appellee.

No. 43516.

Court of Criminal Appeals of Texas.

May 5, 1971.

Rehearing Denied Sept. 23, 1971.

Second Rehearing Denied Nov. 9, 1971.

C. A. Droby, Jim Martin, Melvyn Carson Bruder, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder without malice. The punishment was assessed by the jury at five years.

The record reflects that the appellant who was the manager of Suzie's Bar shot and killed Kenneth Dennis with a .22 caliber pistol.

Most of the State's testimony was from the witness Wayne Buchanan. He met Kenneth Dennis, the deceased, at a tavern, and they later went to Suzie's Bar and drank beer until the one o'clock a.m. closing time. The appellant asked Buchanan and Dennis to move from a table because it was reserved. Dennis did so but reluctantly. Buchanan also testified that Dennis became interested in an attractive girl and the appellant told him some three times to leave the girl alone. Apparently the attractive girl did not protest the attention that she was receiving from Dennis.

Appellant offered to return the cover charge to Dennis if he would leave, but he declined to do so. Some words passed between the appellant and Dennis throughout the evening. At closing time, Dennis did not want to leave. The appellant went behind the bar, came back with the pistol and shot Dennis while he was seated at a booth. He died some three days later.

The appellant testified about the difficulties that she had with the deceased in the bar and that at closing time Dennis was seated in the booth and refused to leave. After an exchange of profanities, she went behind the counter, sacked up the money, picked up the pistol and went to the booth, and when Dennis made a move to hit her, the gun was accidentally discharged.

Witnesses called by the appellant testified that she shot Dennis to keep him from hitting her.

The State's theory was that the appellant was jealous because Dennis was paying too much attention to her girlfriend.

In the first ground of error, complaint is made because the court permitted Dr. Dowdey to testify from an autopsy report which had been prepared by another doctor. It is contended that the testimony was hearsay and was in violation of Article I, Section 10 of the Texas Constitution, Vernon's Ann.St. and the Sixth and Fourteenth Amendments to the Constitution of the United States.

The autopsy report, prepared by Dr. Earl E. F. Rose, who had moved to Iowa, was identified by Betty Harrison, the custodian of the records at the Dallas County Medical Examiners Office. The report was admitted before the court but not before the jury. Dr. Dowedy did not participate in the autopsy, but from the report prepared by Dr. Rose, he testified that Dennis died as a result of injuries caused by the bullet.

In Viser v. State, Tex.Cr.App., 396 S.W.2d 867, an associate medical examiner who was custodian of the records was permitted to testify from the record of the autopsy prepared by another doctor as to the cause of the death. This Court held that the testimony was admissible over the objection that the report was hearsay.

Article 49.25, Vernon's Ann.C.C.P., makes the records of the medical examiner public records.

Article 3731a, Vernon's Ann.Civ.St., provides that records may be admitted into evidence if the offering party has delivered a copy thereof to the adverse party within a reasonable time prior to trial.

Appellant now states that there is no showing in the record that compliance with the delivery of the copy to the adverse party had been made prior to the trial. There was no objection upon which this contention was made and no error is shown.

Appellant contends that Article 3737e, V.A.C.S., which permits memoranda made in the regular course of the business to be admitted into evidence, was not complied with. No objection upon these grounds was made at the time of the trial.

Recently, in Cuevas v. State, Tex.Cr.App., 456 S.W.2d 110, and in Burrell v. State, Tex.Cr.App., 446 S.W.2d 323, this Court reaffirmed the rule that doctors may testify from autopsy reports prepared by their predecessors where the latter are not available to testify in person.

The distinction in Viser v. State, supra, relied upon by appellant, that the custodian of the records testified from the report is not material.

The testimony of Dr. Dowdey was relevant and admissible in evidence.

The contention that Article 49.25, V.A.C.C.P., Article 3731a, V.A.C.S., and Article 3737e, V.A.C.S., as applied to the facts of this case as unconstitutional is overruled.

The first ground of error is overruled.

Next, it is contended that the evidence is insufficient to show that death was the result of any act of the appellant.

The testimony of all the witnesses, including the appellant, was that she shot Dennis.

Dr. Dowdey testified that he examined the autopsy report on 24-year-old Kenneth Dennis; that there was just one entrance hole in the right temple and that the missile was found in the cranial cavity and that the cause of death was a gunshot wound to the head and that the autopsy report showed that the cause of death was gunshot wound to the head.

Appellant relies upon Irving v. State, 67 Tex.Cr.R. 588, 150 S.W.2d 611. There the proof showed that Irving shot the deceased who was dead at the time of trial but there was no showing when he died or what caused his death.

In the present case the proof shows that Dennis died some three days after he was shot as a result of a gunshot wound. We hold that the evidence is sufficient to show the cause of death. See 4 Branch's Ann.P.C.2d, Sections 2025 and 2091. The second ground of error is overruled.

Complaint is made in the third ground of error because the court permitted the testimony of Dr. Dowdey that the finding of cause of death in the autopsy report was consistent with the descriptions of the body as set out in the report because it was hearsay. The witness testified from facts recited in the autopsy report. Based upon his own qualifications as a physician and pathologist, he was properly allowed to express an opinion as to the correctness of the cause of death as stated in the report. This Court held that it was proper for a pathologist to testify to his own expert opinion based upon the autopsy report made by another pathologist over the objection that it was hearsay. Neely v. State, Tex.Cr.App., 409 S.W.2d 552.

No error has been shown. The third ground of error is overruled.

Complaint is made in the fourth ground of error because of the trial court's refusal to grant a mistrial during the direct examination of the witness Buchanan when the following transpired:

'Q. (By prosecutor) All right. Not going into the conversation, what occasioned your going to Suzie's Bar?

'A. We went to Suzie's Bar--he was going to show me a gay place.'

At this point counsel for appellant objected, requested an instruction to the jury that they disregard the answer, which was given, and then asked for a mistrial, which was overruled.

Appellant assumes that the answer was clearly unresponsive to the question. When a witness is asked a 'why' question, which the one at bar is, the witness may give his reasons whether they be founded upon fact, fiction or mere suspicion. See People v. Beasley, 163 Cal.App.2d 22, 328 P.2d 834, and People v. Page, 28 Cal.App.2d 642, 83 P.2d 77. Appellant should have objected at the time the question was asked, and not waited for the witness to respond.

In White v. State, Tex.Cr.App., 444 S.W.2d 921, and Smith v. State, Tex.Cr.App., 457 S.W.2d 58, this Court stated:

'An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Wheeler v. State, Tex.Cr.App., 413 S.W.2d 705, 707; 5 Tex.Jur.2d, Sec. 437; McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29.'

The above rule is applicable here. No reversible error is shown.

Ground of error number four is overruled.

In grounds of error number five and six it is contended that reversible error was committed when Buchanan was permitted to testify about what occurred at the bar immediately following the shooting and after the appellant had left over the objection that such was hearsay.

Buchanan testified that after the shot was fired, he solicited the aid of the people still in the bar, requesting them to call the police and an ambulance and that he heard 'one tall man with an apron around his waist, and a heavy set woman' deny his request and one of them said, 'Get the S.O.B. out of here.' Buchanan then dragged Dennis outside where he obtained the assistance of a young man with 'wavy black hair, slender and wearing woman's eye makeup,' who told Buchanan, 'Don't tell anyone that I helped you.'

Assuming that this testimony was inadmissible, it was not such as would add to the evidence of guilt of the appellant or injure her. See 5 Tex.Jur.2d, Section 444, page 696.

No reversible error is shown. The fifth and sixth grounds of error are overruled.

Ground of error number seven relates to the court's failure to allow the appellant to cross-examine the witness Buchanan concerning the reputation of the deceased. Buchanan had testified that he had met the deceased for the first time on the day in question and at that time the deceased seemed to be quiet and subdued. On cross-examination the witness was...