Matlock v. State
| Decision Date | 30 October 1963 |
| Docket Number | No. 36069,36069 |
| Citation | 373 S.W.2d 237 |
| Parties | Clarence MATLOCK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A. L. Lowery, Marion G. Holt, Nacogdoches, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is driving a motor vehicle on a public highway while intoxicated; the punishment, confinement in jail for three days and a fine of $50.00.
The evidence presented by the state through its witnesses Patrolman Coker and Deputy Mitchell is briefly as follows: Coker and Mitchell were looking for appellant when a car approached them on the wrong side of the road, nearly hitting an abutment. The car was followed and appellant was observed driving it, no one else being in the car. The officers each testified that they smelled alcohol and urine in the car and on appellant; that there was a liquid on his pants and they were torn. Appellant was observed to stagger when he waked, and talked with a thick tongue.
Each officer stated that in his opinion, based on many observations of intoxicated persons, the appellant was intoxicated.
Appellant, his wife and daughter all testified that he had nothing intoxicating to drink. He further testified that he was woozy due to a blow to the head received in a fight earlier that day.
The jury resolved the issue of intoxication against appellant. We find the evidence sufficient to sustain their verdict.
Highway patrolman James Clyde Coker, a witness called by the State, upon being questioned by the county attorney, testified that he went to appellant's home after receiving a telephone call saying a ruckus was being raised at appellant's house. The officer further testified that on his arrival at the house, appellant's wife stated that appellant and Junior Coats had been drunk and fighting.
An objection to this testimony was sustained by the court and the jury was instructed not to consider it.
Appellant complains, by informal bill, that this testimony by the state's witness was fundamental error as a violation of Article 714 of the Vernon's Ann.Code of Criminal Procedure of the State of Texas which provides as follows: '* * * The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.'
It is contended that the fact that the court instructed the jury not to consider the testimony did not cure the reversible error and render harmless the prejudice already done to the rights of the appellant and that such fundamental error could not be cured by appellant later calling his wife as a witness to deny such declarations. We overrule the contention. The answer which related to the conversation with the wife was unresponsive. The state moved the court to withdraw the answer from the jury's consideration, which motion was granted and the appellant asked no further ruling of the court. See Bearden v. State, Tex.Cr.App., 334 S.W.2d 447, and Baker v. State, Tex.Cr.App., 368 S.W.2d 627
The appellant cites and relies upon Sovey v. State, Tex.Cr.App., 362 S.W.2d 121; Cole v. State, 92 Tex.Cr.R. 368, 243 S.W. 1100. In the Sovey case, the prosecuting attorney asked the defendant questions which of necessity would have been known only by appellant and his wife and then followed with such improper questions as, 'You know we can't put her on the stand but you can,' 'You don't want this jury to hear what she has to say, do you?' and Thereafter the prosecution offered the wife's statement into evidence which forced appellant to object thereto. This court, through Judge Morrison, held this conduct to be highly improper and that the trial court should have granted a mistrial.
In the Cole case the prosecutor testified that he had been present at prior hearings and that appellant's wife had testified against the accused. Judge Hawkins, writing for the court said reversible error was reflected because the prosecutor's entire testimony was tantamount to telling the jury that her (appellant's wife's) testimony would have been favorable to the state and injurious to appellant and the state improperly sought advantage by commenting on her failure to testify at such trial. He concludes '[t]he effect of it was to indirectly make her a witness against her husband.'
The Cole and Sovey cases are easily distinguished from the one at bar. In the instant case there was no direct comment with reference to the wife's testifying as in the cases cited by the appellant.
It is well settled that statements made by the wife to a third party or statements between...
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Zimmerman v. State
...Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Matlock v. State, 373 S.W.2d 237 (Tex.Cr.App.1963); Leal v. State, 711 S.W.2d 702, 715 (Tex.App.-Corpus Christi 1986, PDR granted); Lowe v. State, 676 S.W.2d 658, 661 (Tex.App.-Houston [......
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...is admissibile unless otherwise prohibited by the hearsay rule. Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Matlock v. State, 373 S.W.2d 237 (Tex.Cr.App.1963); Morris v. State, 150 Tex.Cr.R. 58, 198 S.W.2d 901 (1947); Oakley v. State,125 Tex.Cr.R. 258, 68 S.W.2d 204 (1934). See al......
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