Nixon v. State, 57700

• Decision Date: 19 September 1979
• Docket Number: No. 57700,No. 3,57700,3
• Citation: 587 S.W.2d 709
• Parties: Kenneth NIXON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 709

587 S.W.2d 709

Kenneth NIXON, Appellant, v. The STATE of Texas, Appellee.

No. 57700.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 19, 1979.

Rehearing En Banc Denied Oct. 31, 1979.

Randy Martin, Houston, for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and R. P. Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, PHILLIPS and W. C. DAVIS, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at twenty years.

In his third ground of error appellant complains of the exclusion of his own testimony about the conversation he had with his wife at the time she was shot.

Appellant and his wife were having marital difficulties, and he discovered she was seeing Larry Gibson. On the afternoon of the shooting appellant came home and confronted his wife with evidence of her affair with Gibson. He had testified to the beginning of their conversation on that afternoon when this point was reached in his direct examination:

"Q. And what did you tell her, then, Kenneth?

"A. Well, I I told her that Gibson was a child molester; that I couldn't give her more time to think; I didn't want him at my house; I didn't want him around my kids.

"MR. CORNELIUS: We're going to object to that statement, Your Honor, because it's based on hearsay.

"THE COURT: Sustained.

"MR. CORNELIUS: We ask

"THE COURT: The jury will not consider the last statement by the defendant for any purpose whatsoever, ladies and gentlemen.

"MR. CORNELIUS: We further ask that it be stricken from the record.

"THE COURT: Very well. It will be stricken from the record."

After appellant's direct and cross-examination was completed before the jury, a more complete bill was made outside the hearing of the jury on this and other matters, and counsel stated his position for the court:

"Q. What did you tell her (his wife)?

"A. I told her about his (Gibson's) record. I don't believe she believed me or what have you. However, like I say, when I told her that I would get the children and that they - - - I didn't think that a divorce court or probation department would allow a child molester to have my child, well, that's when she became hysterical.

" * * *

"MR. MOORE (defense counsel): Your Honor, the additional thing and I'm not sure if it's in or out we wanted to offer was this Nixon statement to Mrs. Nixon to the effect that 'I'm going to get a divorce and seek custody of the children, because I don't want them around a child molester.' Now, this would be the defendant's make a separate tender only as to that statement, which we maintain precipitated her activities and anger to the effect that it's been asked, and I'm not sure whether it's before the jury or not. But, at any rate, we would now tender it and ask the Court to allow us to ask him that very question and elicit that response.

" * * *

"MR. MARTIN (also defense counsel): Further, the statements by Mr. Nixon the phone call and the statement to Mrs. Nixon are a fact and circumstance surrounding the killing, which is admissible under 19.06. And if the State wants to argue that these statements are not true, if they want to argue that Mr. Nixon has made all this up after the fact, that is a jury argument; that goes to the weight to be given the evidence or the testimony, but not to the question of its admissibility. And we feel that those statements are not hearsay and that they're therefore admissible on that basis.

"THE COURT: All right; Mr. Cornelius?

"MR. CORNELIUS: We have the same objections we had at the time of the trial, Your Honor, which were sustained by the Court;...