Miles v. State, 46172

• Decision Date: 13 December 1972
• Docket Number: No. 46172,46172
• Citation: 488 S.W.2d 790
• Parties: Dave MILES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 790

488 S.W.2d 790

Dave MILES, Appellant, v. The STATE of Texas, Appellee.

No. 46172.

Court of Criminal Appeals of Texas.

Dec. 13, 1972.

Rehearing Denied Jan. 24, 1973.

Don Metcalfe, Dallas, for appellant.

Henry Wade, Dist. Atty. and Robert T. Baskett, Asst. Dist. Atty., Dallas and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This appeal is taken from a conviction for the offense of murder with malice. Punishment was assessed at life imprisonment.

Appellant alleges one ground of error.

The State's version of the facts is unchallenged. An eyewitness testified that on March 13, 1965, at approximately 3:30 p.m., the appellant and the deceased got into a fistfight in her yard. After the fight, appellant went inside the witness's house to wash up. At this point, Ruby Calhoun, a friend of appellant's, came out of the house and hit deceased and tried to stab him with a knife. She then went back into the house. A short time later, both Ruby Calhoun and appellant came out of the house, each carrying a knife. Ruby Calhoun stabbed deceased in the back and appellant stabbed him in the chest, and then they fled the scene.

The doctor who performed the autopsy testified that, in his opinion, the cause of death was the stab wound of the chest.

Appellant testified in his own behalf. He admitted being in a scuffle with deceased, but denied carrying a knife into the fight or ever stabbing deceased.

Officer E. C. Duncan of the Dallas Police Department testified that in response to a call, he arrived at the scene shortly after the incident, finding the deceased lying on the grass. After talking with some of the persons present at the scene, Duncan proceeded to a house about three blocks away. Duncan was admitted into the house and saw appellant turn and take several fast steps toward the back of the house. However, Duncan's partner was positioned at the back of the house and when appellant saw him, he stopped and then came back toward Duncan. Duncan asked appellant if he had been at the scene, and appellant answered affirmatively. The officer then inquired of appellant, 'What happened?', and he responded, 'I cut the boys.' Officer Duncan then took appellant and returned to the scene. A knife was handed to Duncan by a woman present at the scene, and appellant stated that was the knife he used to stab the deceased.

Appellant's only ground of error challenges the admissibility of his statement that he 'cut the boys' (referring to deceased and his brother, who was also involved in the incident), and appellant's on-the-scene identification of the knife.

The evidence in regard to 'cut the boys' was admitted by the trial court on the grounds that such a statement was part of the res gestae of the offense. ¹ The record reflects that not over ten minutes had elapsed from the time Duncan got the call reporting the disturbance until he went to the house where appellant was found. Further, appellant's statements were made immediately upon the officer's entering the room. Appellant had taken several fast steps toward the back of the house upon observing the police officer. Apparently, appellant was, at that point, under arrest. ² Officer Duncan had entered the front door, and another officer was positioned at the rear entrance. Nevertheless, even after an arrest, and where such statements are made in response to an inquiry, such testimony is admissible, if all the elements that make the statements a part of the res gestae are present. The case of Moore v. State, 440 S.W.2d 643 (Tex.Cr.App.1969) is in point. There, the deceased was murdered on April 9, 1967, in Dallas. He (Moore) was arrested in Fort Worth at a service station on April 10, 1967. Certain statements he made to the arresting officer, within one minute after he first saw him, were held admissible under Art. 38.22, § 1(f), V.A.C.C.P. Similarly, the trial court in the present case had sufficient evidence to conclude that the statements were res gestae of the arrest. The officer's question was neither leading nor suggestive of an answer. See Wright v. State, 440 S.W.2d 646, 648 (Tex.Cr.App.1969); Spann v. State, 448 S.W.2d 128 (Tex.Cr.App.1969); Rice v. State, 480 S.W.2d 694 (Tex.Cr.App.1972). See also, Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). This Court has held innumerable times that statements which are part of the res gestae are admissible notwithstanding the fact that they may not be admissible as confessions or admissions, for the rule of res gestae is independent of, superior to, and cannot be limited by the rules relating to confessions or admissions after arrest. ³ Jones v. State, 458 S.W.2d 654 (Tex.Cr.App.1970) and cases cited therein.

The fact that the trial judge admitted the statements as 'part of the res gestae of the Offense' (emphasis supplied) is of no consequence. The mere fact that a correct ruling is given for the wrong reason will not result in a reversal. If the decision is correct on any theory of law applicable to the case, it will not be disturbed. Smith v. State, 475 S.W.2d 238 (Tex.Cr.App.1971); Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455 (1960); Venable v. State, ...