Phillips v. State

• Decision Date: 12 March 1958
• Docket Number: No. 29067,29067
• Citation: 166 Tex.Crim. 206,312 S.W.2d 644
• Parties: Charles Leonard PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 644

312 S.W.2d 644

166 Tex.Crim. 206

Charles Leonard PHILLIPS, Appellant, v. The STATE of Texas, Appellee.

No. 29067.

Court of Criminal Appeals of Texas.

March 12, 1958.

Rehearing Denied April 30, 1958.

John D. Glass, Ben Ferrell, Tyler, for appellant.

Harry Loftis, Dist. Atty., R. S. Burruss, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is murder; the punishment, life.

The homicide occurred at the home of the deceased at a time when his wife, two brothers, two of his children and their spouses were present. The appellant was a neighbor. All of them, including the appellant, testified as to the events preceding the homicide; and since there is no material conflict, except as hereinafter noted, the facts will be summarized. The appellant and his employer drove by the deceased's home at approximately eight o'clock in the morning, and the deceased joined them in a can of beer. That afternoon the appellant returned alone in his pickup truck with a carton of six cans of beer; the deceased sat in the pickup; one of his brothers stood on the outside, and the three of them consumed the beer. It was during this visit that the appellant inquired the identity of one of the women sitting in the yard, and she was called to the pickup and identified as deceased's daughter. Apparently her husband was irritated at this incident because he came to the pickup and notified the appellant that the woman to whom he had been talking was his wife. According to the appellant's testimony, during this visit the deceased gave him a dollar, with instructions to buy some more beer, and when he returned with the beer the deceased was not around the front of the house; and one of the men told the appellant to drive on and threatened to jerk him out and stomp him if he did not leave. He stated that he went home, sat on the steps at his back door, and though about being ordered to leave and what the deceased might think of his misappropriation of his dollar, secured his .22 rifle and returned to the deceased's home and got out of his pickup with the rifle in his hand. According to the appellant, the man who had ordered him to leave started toward his pickup.

According to some of the State's witnesses, the appellant said, 'Stand back, or I will kill every damn one of you,' and shoved deceased's wife back when she tried to get him to give her the gun. Be that as it may, it does appear that at this juncture the deceased came in the back door of his home, secured a shotgun, and proceeded to the front door. The appellant shot five times at the deceased in or near the front door. The appellant testified that the deceased shot him with the shotgun while he was in the act of shooting the deceased and that someone shot at him again as he was driving away. Members of the deceased's family testified that the deceased did not fire the shotgun but that his son picked up the gun after the deceased had fallen and shot at the appellant as he drove away and that the shotgun was fired only once. Some of the shotgun pellets took effect on the appellant's person.

The appellant drove to a nearly store; the sheriff was called; he came to the shore and placed the appellant under arrest.

The jury rejected the appellant's claim of self-defense, and we find the evidence sufficient to sustain their verdict. We shall discuss the contentions advanced by appellant's able counsel.

They contend that reversible error is reflected by the testimony of a deputy sheriff as to a conversation had with the appellant on the way to Tyler in which the appellant 'told me that he didn't have the gun in the pickup at that time but he went home and got the rifle and returned and shot' the deceased. The court admitted the statement on the theory that it was res gestae. While we do not agree with the trial court's ruling, we must determine if reversible error is reflected by the admission of such evidence. Appellant contends that, because of the admission of this testimony while the State was making out its case in chief, the appellant was forced to take the stand in his own defense and explain the same.

The appellant relies upon Trollinger v. State, Tex.Cr.App., 219 S.W.2d 1018, which holds that, where inadmissible evidence is introduced by the State, the appellant does not waive the error when he takes the stand and attempts to minimize the damage. Before this rule comes into application, it must appear that the appellant was required, under the circumstances of the case, to testify in order to explain or minimize the injury and that his testimony had that effect. Trollinger had shot a number of people, and the officer quoted him as having said that he hoped all the 's.o.b.'s' out there are dead. The damaging effect of this testimony is apparent. Trollinger, in an effort to minimize the injury, testified and denied the officer's testimony, explaining that all he had said was that 'they may die.' Now, let us examine the situation in the case at bar.

The deputy sheriff stated that the appellant told him he did not have the rifle with him but went home and got it. The appellant did not deny this testimony but did testify to far more damaging facts when he said that he went home, sat on the back steps and thought about having been required to leave the deceased's home, armed himself with a rifle and returned to deceased's home 'to talk to him about that fellow that came out to run me off.'

In this case, it is apparent that the appellant took the stand because the State's witnesses had denied that the deceased had fired the shotgun, and the appellant needed this evidence to give substance to his plea of self-defense.

Appellant next contends that reversible error was committed by the asking of the following question of the deputy sheriff mentioned above: 'Mr. Jernigan, did you have a conversation with Mr. Phillips (the appellant) on that occasion with reference to any two other peace officers who were employed by the City to Tyler?' Appellant's objection was sustained, and the witness was not permitted to answer the question. The question was so phrased that it did not convey to the jury any inadmissible information and, in view of the fact that it was not answered, no reversible error is shown.

Appellant next complains of that portion of the court's charge wherein he submitted the law of self-defense and the failure to grant his requested charge. The two cases relied upon by the appellant were affirmed by this Court. The court's charge did not limit the appellant's right of self-defense and, under the facts before us, constitutes a fair presentation of such defense.

The following argument was objected to:

'Now, Ladies and Gentlemen of the Jury, I submit to you that when you return your verdict in this case, that you say to him by your verdict, 'Charles Phillips, you can't get half high, and use that as an excuse to go to an old man's house and kill him and shoot him down like a dog----"

We are not cited any authority in support of appellant's contention that this constituted reversible error. We do observe that, according to all the evidence, the appellant had consumed a number of bottles of beer preceding the homicide. In Housden v. State, 131 Tex.Cr.R. 256, 98 S.W.2d 181, we held that reversible error was not reflected by argument of State's counsel when he charged the accused with shooting the deceased and then leaving him 'to wallow in the sand like a hog.'

We are next presented with the following argument which appellant contends, should bring about a reversal of this conviction:

'There was testimony that there was bullet holes all through that door. Mr. Glass said that there was testimony concerning bullet holes in that screen door, but the screen door is not in evidence. Mr. Glass asked the woman if she would be willing to bring that screen door up here. He undoubtedly didn't send for it and didn't ask any more about it, but that screen door would have answered and verified and corroborated that situation.

'Mr. Glass: That is beyond the facts in this case, and we object to it and move the Court again upon that basis for a mistrial. It is highly prejudicial, beyond the record.

'The Court: Sustain your objection and you Ladies and gentlemen will not consider the statement about what the screen door would have shown. You have heard the testimony with reference to the screen door. Go ahead with your argument. Overrule your motion for mistrial.'

The trial court acted properly in withdrawing the last portion of the argument from the jury's consideration, and we must determine if he erred in refusing the motion for mistrial. While the deceased's wife was on the stand, Mr. Glass (one of the appellant's attorneys) asked her on two occasions if she would be agreeable to have the screen door removed and brought to court, and she answered that she would; but the matter was not pursued any further. The portion of the argument which was withdrawn did not assert any fact not in evidence but was the assertion that had the door been brought to court it would have settled any conflict concerning the same which may have existed in the evidence, and we conclude that the court did not err in failing to grant the mistrial.

Appellant also urges that the court erred in permitting State's counsel to ask appellant the following question:

'You are the same Charles L. Phillips who was convicted in the District Court of Smith County, Texas, on October 22, 1953, of the felony offense of driving while intoxicated, a motor vehicle, and received a punishment of five years in the penitentiary?'

He contends that the State should be limited to asking the appellant if he ever before had been convicted of a felony and not permitted to show the nature of the felony. Counsel concede that they can find no authority in support of his contention, and we are aware of none.

Finding no reversible error, the...