Moore v. State

• Decision Date: 27 May 1964
• Docket Number: No. 36914,36914
• Citation: 380 S.W.2d 626
• Parties: Ormond MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 626

380 S.W.2d 626

Ormond MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 36914.

Court of Criminal Appeals of Texas.

May 27, 1964.

Rehearing Denied June 27, 1964.

Glenn Polk, Dallas, for appellant.

Henry Wade, Dist. Atty., Stephen W. Guittard, Edwin L. Davis, W. John Allison, Jr., and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder; the punishment, death.

On the night in question, the deceased and one James Hill were riding together in the city of Dallas in a 1956 Ford automobile. The deceased was driving the automobile. Around 1:30 a. m., as the deceased's automobile was stopped for a stop sign at the intersection of Spring and Second Avenue, a 1961 Pontiac automobile, with five male occupants and being driven by appellant, bumped into it from the rear. The deceased got out of his automobile, walked back to the Pontiac, and had some words with the appellant. After talking to appellant, the deceased returned to his automobile and drove away with his companion to a cafe. Later, around 2 a. m., as the deceased and his companion had started home and were stopped at a stop sign at Oakland and McDermott Street, the Pontiac automobile driven by appellant again bumped into the rear of deceased's automobile. Thereupon, the deceased got out of his automobile and, when he had taken two steps, some shots were fired from the driver's side of the Pontiac automobile. The deceased fell, mortally wounded, to the ground, with a gunshot wound in the right chest. His companion, Hill, then alighted from the automobile and he, too, was shot, in the right shoulder.

It was shown by the evidence that the fatal shot which struck the deceased was fired by the appellant and that the shot which struck James Hill was fired by one of appellant's companions, James Stevens.

In presenting its case in chief, the state was permitted to show by the witness James Louis Ellis, one of the occupants in the automobile driven by appellant, that, prior to the first meeting of appellant and the deceased on the night in question, the appellant and his companions had a difficulty in the vicinity of Fair Park with some other parties who were riding in a 1962 Chevrolet Impala automobile.

Over appellant's objection that such constituted proof of an extraneous offense, the witness Ellis testified that before appellant and his companions drove up behind the deceased's automobile the first time, they had driven alongside an Impala automobile in which some men and women were riding. At such time, appellant said to the occupants of the Impala: 'Let me have those women * * * You punks, let us have those women.' A man in the Impala drew a gun, pointed it in the air, and said: 'Who's a punk * * * Who are you calling punks?' Appellant then fired two shots at the Impala, whereupon the Impala was driven away, and was followed by appellant and his companions. During the chase, appellant gave the gun to James Stevens, who was riding on the back seat. While being pursued, the Impala stopped and the occupants got out and started running. James Stevens then proceeded to shoot at those fleeing from the Impala with the gun which appellant had given him. After shooting at them appellant and his companions drove away to get some more shells and shortly thereafter bumped into the deceased's automobile the first time.

The witness's testimony relative to appellant and his companions shooting at the occupants of the Impala automobile clearly constituted proof of an extraneous offense.

When offered at the trial, the state insisted that the testimony was admissible under Art. 1257a, Vernon's Ann.P.C., to show the condition of appellant's mind at the time he shot the deceased. In brief and oral argument before this court, it is the state's contention that the shooting of the occupants of the Impala and of the deceased was all one continuous transaction and the testimony was therefore admissible as part of the res gestae.

We are unable to agree that the proof of appellant shooting into the Impala automobile was admissible under Art. 1257a, supra, to show the condition of his mind at the time he shot the deceased. Art. 1257a, supra, which provides:

'In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed, * * *' (Emphasis, supplied.)

does not extend the rules of evidence touching the admissibility of facts bearing upon the accused's state of mind. Howard v. State, 122 Tex.Cr.R. 371, 55 S.W.2d 1048. The shooting into the Impala at a different place and time was a separate and distinct act from the shooting of the deceased. Proof of such act could show neither ill-will nor malice toward the deceased, who was a stranger to appellant. Such facts distinguish this case from Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115, where the acts of the accused were a part of the same transaction and held to be admissible on the issue of both intent and identity of the accused in the shooting of the deceased. Nor do we agree that the shooting into the Impala and the killing of the deceased was one continuous act. To the contrary, it appears that there was no connection between the two acts, but that they were separate and distinct acts. The shooting into the Impala not being a part of the res gestae of the killing of the deceased, the court fell into error in permitting the state to make such proof. McRae v. State, 101 Tex.Cr.R. 411, 275 S.W. 1067; Chester v. State, 108 Tex.Cr.R. 150, 300 S.W. 57; Glover v. State, 125 Tex.Cr.R. 605, 69 S.W.2d 136; Lawrence v. State, 128 Tex.Cr.R. 416, 82 S.W.2d 647; Maddox v. State, 134 Tex.Cr.R. 289, 115 S.W.2d 644; Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731. Appellant was entitled to be tried not as a criminal, generally, but upon the charge against him. It cannot be said that the proof of the extraneous offense was not prejudicial to appellant.

Formal Bill of Exception No. Nine, as presented to the trial judge by appellant, certifies that in his closing argument to the jury the assistant district attorney stated:

"But this murderer, who sits over here, Hidden by his counsel from the scrutiny of the jury, Hidden by his counsel."

"Mr. Polk, if I had a client that was as guilty as your client is, a murderer as cold blooded, I would hide him too."

"You've seen him hide behind his counsel as he came into this courtroom."

"It was a killing for kicks, if you please, and that was all."

"The killing was just for kicks, joy killing."

It is further certified in the bill that:

'All of which prejudicial and highly inflammatory arguments of the State's Attorney, Eddie Davis, was outside of the record, not in response to anything the Defendant had said or done, and was continuously repeated while Defendant's objections were being sustained by the Court, and the record will reflect that the foregoing prejudicial argument as well as numerous other personal vilifications and abuse of Defendant's counsel with which the record is replete, shows peradventure of a doubt that the Defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court's rulings.'

In signing the bill, the trial judge certifies that the following action was taken thereon:

'The foregoing Bill of Exceptions was presented to me in due time and was approved and ordered filed, subject to the following qualifications:

'The Court does not certify to the truthfulness of the contents therein but he does certify that they are only contentions of the Defendant.

'/s/ Joe B. Brown

'Judge'

Under the provisions of Art. 760d, Vernon's Ann.C.C.P., it is the duty of the trial judge to act upon the bills of exception, filed by a defendant, within one hundred days after notice of appeal is given. His action shall consist of either approving the bills or refusing the same with the court's reasons noted thereon.

In the instant case the court, in effect, certified that he approved the bill but did not approve it. The court's action was tantamount to no action at all. Under the decisions of this court, where no action is taken by the trial judge on a bill of exception within the time prescribed it must be considered approved by the court. Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527, 85 A.L.R.2d 1130; Damaris v. State, Tex.Cr.App., 363 S.W.2d 464. Treating the bill as approved, it certifies argument which was improper and obviously prejudicial to appellant.

For the errors pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.

WOODLEY, Presiding Judge (dissenting).

This conviction is set aside, in part at least, upon the erroneous conclusion that the trial court had certified as a fact that the remarks of the assistant district attorney, Eddie Davis, set out in the majority opinion and in Formal Bill of Exception No. 9, were prejudicial and highly inflammatory; were outside the record and that such argument 'as well as numerous other personal vilifications and abuse of defendant's counsel with which the record is replete, shows peradventure of a doubt that the defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court's rulings.'

It should be apparent that had the trial judge entertained such view of the argument he should and no doubt would have declared a mistrial or granted a new trial.

It should also be apparent from the trial...