McGary v. State

• Decision Date: 04 May 1988
• Docket Number: No. 1110-86,1110-86
• Citation: 750 S.W.2d 782
• Parties: William Ray McGARY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 782

750 S.W.2d 782

William Ray McGARY, Appellant, v. The STATE of Texas, Appellee.

No. 1110-86.

Court of Criminal Appeals of Texas,

En Banc.

May 4, 1988.

Clyde A. Wilson, Jr., Greg Gossett, San Angelo, for appellant.

Gerald A. Fohn, Dist. Atty., San Angelo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of murder. V.T.C.A., Penal Code, § 19.02(a)(1). The jury assessed his punishment at life imprisonment.

On appeal the appellant, inter alia, contended in his first point of error that the "trial court erred by admitting into evidence the written statement which a defense witness [Myren Nell Breeden] had given to the police." The contention centered on the improper impeachment of the said witness. On original submission the Austin Court of Appeals sustained the contention and reversed the conviction. Subsequently the court granted the State's motion for rehearing, withdrew its earlier opinion and substituted an unpublished opinion in lieu thereof, affirming appellant's conviction. McGary v. State (Tex.App.--Austin, No. 3-85-197-CR--July 23, 1986). In the latter opinion the Court of Appeals found that appellant had failed to preserve for appeal the issue of improper impeachment. The court declared that "[b]y limiting his objection to the predicate laid for Breeden's testimony, appellant has failed to preserve for appeal the issue of its admissibility. Hulin v. State, 438 S.W.2d 551 (Tex.Cr.App.1969)." It was the court's position that appellant's trial objection was limited to the failure to lay a proper predicate for admission of Breeden's statement to police whereas on appeal "appellant refers only to the admissibility of Breeden's statement, not to the predicate." Thus the objection at trial was not the same as the complaint raised on appeal, presenting nothing for review. This Court granted appellant's petition for discretionary review to determine the correctness of such holding as the same conflicts with prior decisions of this Court. Rule 200(c)(1), Tex.Rules of App.Proc.

At trial there was no dispute that appellant McGary shot the deceased, Mitchell Shane Watkins, in the chest with a shotgun. The issue in dispute was whether the shooting was accidental or intentional. Three persons other than the appellant witnessed the shooting. Lisa Hough Watkins ¹ supported the State's theory of the case that the shooting was intentional. Lisa Watkins stated that on April 17, 1985, she had been living at Myren Breeden's house for about two weeks, that appellant also stayed there at the request of Breeden's husband from whom she was separated. About noon on April 17, 1985, appellant entered the house asking for his pistol, saying he was going to kill "Shane [deceased] or Bo [Binyon], either one." Appellant told Lisa "They ripped me off for an eight ball," which Lisa described as meaning "approximately three and a half weight grams of methamphetamine." Appellant then loaded a shotgun and went outside and Lisa followed. She related the deceased came walking toward the appellant asking "What are you doing?" When the men were about four feet apart appellant shot the deceased in the chest. When Lisa asked the appellant "Why, Billy?" he answered, "They'll learn. They'll learn." Lisa testified she had knowledge of drug usage and sale, that she was using drugs at the time, but later tried to indicate the drugs were prescription drugs. She testified the deceased used drugs on occasion but refused to answer the question whether he sold drugs. The parties entered a stipulation as to Jerry Binyon's testimony. The brief stipulation read to the jury reflected that Binyon, if called as a witness, would testify the deceased Watkins walked up to the appellant and put his hand around the barrel of the shotgun and was then shot by the appellant at 519 Pulliam Street, San Angelo, on April 17, 1985. ²

Myren Nell Breeden testified for the defense. She related that appellant came to her house where he had been staying on the morning of the shooting, that he came into the house and got his shotgun and went back outside where the deceased Watkins and Binyon were. Breeden followed the appellant outside and testified an argument ensued. Breeden saw Binyon begin to circle behind the appellant and she yelled a warning to the appellant, that the appellant turned his head in response to her warning, at which time the shotgun went off, with the shot hitting Watkins in the chest.

On cross-examination the State established that Breeden had been using "speed" (methamphetamine) on the day in question, that she did smoke marihuana, and had been under psychiatric care four years before trial. The district attorney then called her attention to a written sworn statement given on April 17, 1985 (time) at the police station (place) to Detective Rudy Sosa (person). Breeden identified her signature on the statement and admitted giving the statement to Sosa following the shooting. She stated she could not read and that Sosa had the statement read to her by some lady, that she had initialed several places where corrections were made. When asked if she had told the jury what she had told Sosa she answered, "No, I did not ... Because I was told to keep a lot of stuff out of it." Witness Breeden told the prosecutor she was telling the truth to the jury, that she knew about the law of perjury, and she didn't want to change her trial testimony. In answer to specific questions she admitted to the prosecutor that she told Sosa that the appellant had shot Watkins while Watkins had his hands up in the air, that Binyon was by the truck when the shot was fired, but "that wasn't the way it happened."

On recross-examination the district attorney offered into evidence the written statement. The record reflects:

"MR. FOHN: Okay. At this time we offer, Your Honor, for impeachment purposes States' Exhibit No. 9.

"MR. WILSON [Defense Counsel]: Your Honor, the only reason I object is because I believe the proper way is to ask her if she said something within that statement, and with specificity, and to allow her to admit or deny whether she said that. For that reason, we would object.

"THE COURT: Overrule the objection. 9 is admitted."

The prosecutor was then permitted to read to the jury the entire statement.

Thereafter the appellant, age 38, testified in his own behalf. He was good friends with Watkins, the deceased, and had known him about five years. He had known Binyon about a year. Appellant knew each man carried a knife. On the night of April 16, 1985, appellant was at the house of a friend named Claire when the two men asked to borrow appellant's car to collect on "some drug deals." When they returned the car to Claire's apartment the next morning where appellant had spent the night. Watkins and Binyon wanted to borrow $100.00 from appellant to "score an eight ball," "to get some dope." Appellant refused, telling them he needed the money for rent and moving which he and Breeden had planned to do that day. Appellant related Watkins became "pretty upset" and Binyon kept walking behind him with his hand in his pocket. Appellant then agreed to go to 519 Pulliam where he was living at the time and give the money to the men there. Upon arriving there appellant stated he went into the house and got a shotgun to defend himself as "they had that knife" and were in "pretty bad shape" wanting a "shot of dope." When he went outside appellant saw Watkins kneeling, looking under the seat of appellant's car. When asked what he was doing Watkins said he was looking for a book which had a list of the people who owed him money on drug sales. Appellant related that when Watkins got up and saw the shotgun "he just went crazy" and came towards the appellant. Appellant also saw Binyon begin to move, and heard Myren Breeden yell to him "Watch out, Billy." As he turned to glance at Binyon appellant stated Watkins grabbed the shotgun and it discharged; that he did not voluntarily or intentionally pull the trigger; that the shotgun fired only when Watkins grabbed the shotgun. Appellant then went into the house to see that an ambulance had been called. He was arrested at the scene.

The State offered evidence that it took in excess of five pounds to depress the trigger on the shotgun in question, and it did not have a hair trigger, that the hammer had to be cocked before firing. Other evidence showed that when Detective Sosa arrived at the scene two minutes after receiving the call he found the boots had been removed from the body of the deceased and a bag of marihuana was lying nearby. The autopsy showed that the deceased was under the influence of marihuana at the time of his death. A knife was found among the deceased's belongings after he was taken to the hospital.

Here we are confronted with a question of proper proof of inconsistent statements (self-contradiction). In 1 Ray, Texas Law of Evidence, § 687, p. 625 (Tex.Practice, 3d ed. 1980), it is written:

"The general theory of this kind of evidence is the same as that of contradiction by other witnesses, i.e., to show that the witness has a capacity for making errors. From his error on one point it may be inferred that he has erred on other matters. But the manner of establishing the specific error is different here. In the contradiction already considered the statements of other witnesses were relied on to show the error. Here the witness' own prior statement in which he gave a contrary version, is used. Since his previous statement and his present testimony are contradictory, one of them must be erroneous. Therefore he had made an error. But, as in contradiction by other witnesses, the inference to be drawn is indefinite, i.e., merely a capacity to make errors. No specific defect is proven. It should be noted, however, that this method of impeaching the witness is stronger and...