Ramos v. State

• Decision Date: 18 October 1967
• Docket Number: No. 40393,40393
• Citation: 419 S.W.2d 359
• Parties: John Gasper RAMOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 359

419 S.W.2d 359

John Gasper RAMOS, Appellant, v. The STATE of Texas, Appellee.

No. 40393.

Court of Criminal Appeals of Texas.

Oct. 18, 1967.

Rehearing Denied Dec. 6, 1967.

Clyde W. Woody (on appeal), Marian S. Rosen (on appeal), William M. LauBach (on appeal), Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a conviction for murder without malice under the provisions of Article 802c, Vernon's Ann.P.C.; the punishment assessed by the jury, four (4) years confinement in the Texas Department of Corrections.

The deceased, Fred Peebles, was an off-duty, uniformed Harris County deputy sheriff, escorting a funeral procession when he died on the afternoon of September 23, 1965. He was standing astride his motorcycle directing traffic as the funeral procession passed onto the Eastex Freeway in Harris County, Texas when an automobile driven by appellant entered the feeder lane (an incline onto the freeway), hit the motorcycle and the deceased, dragged the motorcycle and deceased 277 feet, struck the freeway median railing, and came to a stop. There were no skid marks. The speed of appellant's car was approximated by various witnesses from 60 to 70 miles per hour.

After striking the median railing the appellant left his automobile, jumped the median rail and ran off, attempting to remove his shirt. In his flight from the scene he was also seen to climb a fence at the edge of the freeway. A passing motorist, Carl Simmons, tried to apprehend him, whereupon appellant pulled a knife on Simmons and threatened to kill him.

Thereafter Simmons returned to the freeway, obtained the assistance of Officer B. L. Goodson, and then in company with Goodson and another passing motorist, Cecil Kensey, searched for and found appellant. Simmons identified appellant as the driver of the automobile which struck the deceased and expressed the opinion that appellant was intoxicated. His testimony as to appellant's intoxication was corroborated by the witness Kensey and Officer Goodson. Appellant's behavior was violent and belligerent at the time of his arrest and he had to be restrained on the way to the hospital and police station, and at the hospital.

Dr. Joseph A. Jachimczyk, Harris County Medical Examiner, testified that Peebles' death was caused by a fractured skull, a broken neck, a crushed left chest and a broken back. The deceased apparently died instantly or immediately after the collision.

In his first ground of error, appellant contends the trialcourt committed reversible error in admitting into evidence statements attributed to the appellant subsequent to the collision by the State witnesses Simmons and Goodson. It is appellant's position that (1) the statements were not admissible as res gestae utterances, and further that (2) if they were res gestae, they were still inadmissible in absence of a compliance with the statutory warnings given by a magistrate as required by Article 15.17, Vernon's Ann.C.C.P.

Simmons, after testifying to his first encounter with the appellant, related, without objection, that upon appellant's apprehension by Officer Goodson appellant again threatened to kill him (Simmons) and stated that if he did not, his friends would.

On re-direct examination of the witness Simmons, the following testimony was elicited:

'Q. After the defendant was caught by you and Officer Goodson, did he say anything about this collision?

'A. Yes, he did.

'Q. What was that, sir?

'A. I informed him he had killed a man over there, a Deputy Sheriff--

'Mr. Norris: I object to anything stated by this man as being too remote, immaterial and irrelevant.

'Mr. Applewhite: I believe we went over that a while ago.

'The Court: Overruled.

'Q. (by Mr. Applewhite) What did he say?

'A. (by Witness) He said he hadn't killed nobody. He had been in a fight.

'Q. Been in a fight?

'A. Yes, sir.

'Q. Did he say anything else that you remember?

'A. No sir, other than I was a liar and an s.o.b. and he would kill me.'

On direct examination of Officer Goodson, State's counsel elicited testimony concerning appellant's cursing and abusive language at time of arrest. Over objection (irrelevant, immaterial and while appellant was under arrest) the witness was permitted to testify as follows:

'Q. (by Mr. Applewhite) What are some of the things he said?

'A. (by Witness) He stated he had been in a fight in a bar uptown somewhere and kept telling us he hoped the son-of-a-bitch he hit died.

'Q. This was one continuous outburst on his part, these statements?

'A. Yes sir, the whole time we were there. The part of him being in a fight at a bar we had no knowledge of that happening, if it had.'

The statements attributed to the appellant occurred within approximately 15 minutes after the collision and at the very time of his arrest. At such time the record reveals that the appellant had fled the scene of the collision, as described above, had pulled a knife and threatened the witness Simmons, and when arrested, appellant had been running, was sweaty, breathing heavily, was cursing and using abusive language, acted belligerent and was completely uncooperative. Such conduct continued for some time following the arrest.

In Preston v. Commonwealth, 406 S.W.2d 398, the Court of Appeals of Kentucky, in discussing the admissibility of evidence as res gestae, said:

'According to Wigmore, and it is demonstrably so, courts in general have reduced the term 'res gestae' to a useless and misleading shibboleth by embracing within it two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not, the two being admissible in evidence under different principles. Wigmore on Evidence, § 1767 (Vol. VI, p. 182). When the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may be proved as a verbal act, just as may be a visual observation of an event. This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. One of the several qualifications for admissibility of this type of statement is that 'the words must be contemporaneous with the conduct, or, in the usual phrase, must accompany the act.' Id., § 1776 (Vol. VI, p. 197).

'The character of utterance that is admissible as a genuine exception to the hearsay rule, also under the customary label of 'res gestae,' is a spontaneous exclamation, which may or may not be exactly contemporaneous with the provable act or event. Id., § 1745 et seq. (Vol. VI, pp. 131 et seq.). See Norton's Adm'r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927). See also note, Res Gestae in Kentucky, by H. E. Edmonds, 39 Ky.L.J. 200 (1950--51). The typical case presented is a Statement or exclamation, by a participant, immediately after an injury, declaring the circumstances of the injury, or By a person present at an affray, a railroad collision, or Other exciting occasion, asserting the circumstances of it as observed by him.' Wigmore on Evidence, § 1746 (Vol. VI, p. 134). This type of statement is received in a testimonial capacity, as evidence of the truth of the fact asserted. Ibid.

"It will be seen that these two classes of statements or exclamations are based on very different principles, and that the question of their admissibility must be determined by the principles applicable to the class within which they fall. * * * The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement has died away,' etc. Keefe v. State, 50 Ariz. 293, 72 P.2d 425, 427 (1937).'

It is the position of the State in the case at bar that the declarations of the appellant were incoherent utterances of an intoxicated person, and were admitted at the time the question of intoxication was still in issue.

It appears, therefore, that the testimony offered by the State as to the acts, conduct and declarations of appellant as described above was Not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place at the time appellant was apprehended shortly after leaving the scene of the collision. In other words, appellant's statement as to a fight in a bar was admitted to show the details of a relevant occurrence which was provable, and was Not admitted for the purpose of proving that in fact there had been a fight in a bar. See Wharton's Crim.Evid. (12th Ed.) Vol. 1, Sec. 257, p. 588; State v. Tyron, 145 Conn. 304, 142 A.2d 54.

We therefore hold that the statements complained of were admissible under the 'verbal act' doctrine, sometimes referred to as the so-called res gestae rule. See 24 Tex.Jur.2d, Sec. 581; Evans v. State, Tex.Cr.App., 401 S.W.2d 602; Johnson v. State, Tex.Cr.App., 379 S.W.2d 914; Wilder v. State, 169 Tex.Cr.R. 255, 333 S.W.2d 367; Byers v. State, 166 Tex.Cr.R. 34, 310 S.W.2d 331, 333.

In view of our holding it is unnecessary to determine whether such statements were also admissible as a spontaneous exclamation a genuine exception to the hearsay rule.

It is further observed that a portion of the complained of testimony was previously admitted into evidence without objection. It should also be remembered was properly admissible as res gestae, was properly admissible as res gestate, then the whole conversation is admissible where only a general or blanket objection is interposed. Phillips v. State, 137 Tex.Cr.R. 206, 128 S.W.2d 393. In other words, where a...