Mauldin v. State, 29323

• Decision Date: 18 December 1957
• Docket Number: No. 29323,29323
• Citation: 165 Tex.Crim. 405,308 S.W.2d 36
• Parties: Ross Earl MAULDIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 36

308 S.W.2d 36

165 Tex.Crim. 405

Ross Earl MAULDIN, Appellant, v. The STATE of Texas, Appellee.

No. 29323.

Court of Criminal Appeals of Texas.

Dec. 18, 1957.

Irwin & Irwin and T. K. Irwin and T. J. Irwin, Jr. and George W. Irwin and R. T. Scales, Dallas, for appellant.

Henry Wade, Dist. Atty., Thomas Thorpe, A. D. Bowie and Frank Watts, Asst. Dist. Attys., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is murder; the punishment, 99 years.

In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that the evidence was undisputed that the appellant killed the deceased by shooting him with a gun; the homicide occurring at a cafe in the City of Dallas.

It was the State's theory, which was supported by the testimony of its witnesses, that the appellant intentionally shot the deceased without any justification or excuse.

The defense offered by appellant was that of self-defense and accident.

As a witness in his own behalf appellant admitted shooting the deceased on the occasion in question but testified that in so doing he was defending himself; that the gun 'went off' when he struck the deceased and that he did not intend to kill him. He further testified in support of his application for suspension of sentence that he had never been convicted of a felony in this or any other state.

Upon cross-examination, in answer to questions propounded by State's counsel, appellant testified he had never carried a knife.

Thereupon the state was permitted to interrogate the appellant relative to his having had previous trouble over carrying a knife and he was asked, and admitted, that he had once 'gotten in trouble over carrying a knife' and was 'filed on for aggravated assault with a knife'. He was also asked, but denied, that he had pulled a knife on one Marvin Booker and cut him three times or that he did 'a little carving' on one Curtis Harris.

Appellant objected to such line of interrogation and moved for mistrial. He also objected to that portion of the court's charge limiting the jury's consideration of the evidence to the purpose for which it was admitted.

In permitting such interrogation and admitting such evidence, the court was in error.

Art. 732a, Vernon's Ann.C.C.P., expressly prohibits the state from using for the purpose of impeachment, accusations which have not resulted in a final conviction. Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875. A conviction which may be used for the purpose of impeachment under Art. 732a, supra, must be for a felony offense or one involving moral turpitude. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328.

The rule is well settled that the filing of an application for suspension of sentence does not authorize the state to prove specific acts of misconduct against the accused. Scarber v. State, 156 Tex.Cr.R. 542, 244 S.W.2d 207, and Rodriquez v. State, 160 Tex.Cr.R. 453, 272 S.W.2d 366.

The fact that appellant, on his cross-examination by state's counsel, testified that he had never carried a knife did not authorize his impeachment on the matter. The evidence shows that he killed the deceased by shooting him with a gun. His carrying a knife was not shown to have any connection with the deceased. Whether he had carried a knife was immaterial to any issue in the case. Recently in Driehs v. State, Tex.Cr.App., 301 S.W.2d 123, we held it reversible error to permit...