Schulz v. State

• Decision Date: 09 July 1969
• Docket Number: No. 42120,42120
• Parties: Marvin Roger SCHULZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 872

446 S.W.2d 872

Marvin Roger SCHULZ, Appellant, v. The STATE of Texas, Appellee.

No. 42120.

Court of Criminal Appeals of Texas.

July 9, 1969.

Phil Burleson, Dallas, for appellant.

Henry Wade, Dist. Atty., Joe K. Hendley, Malcolm Dade, Kerry P. FitzGerald, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for assault to murder with malice; the punishment, thirteen years.

The record reflects that John Wheeler was having dinner in the apartment of Myrtis Schulz when Marvin Schulz entered the apartment and shot Wheeler in an eye, in the back of the head and in the back. At approximately 4:30 o'clock that afternoon the appellant, who was divorced from Myrtis Schulz and who had visitation privileges with his young daughter, appeared at the apartment, talked briefly with his exwife and left. Shortly before 6:00 o'clock, he returned and, without provocation or apparent reason, started shooting. After being hit in the head twice, Wheeler ran; appellant pursued and shot him in the back. Wheeler entered another apartment and appellant was trying to enter when the door was slammed on his arm. He then dropped the gun and left. Appellant testified that he pulled the trigger intentionally knowing that the gun was fully loaded; that the shooting was not an accident, but that he did not intend to kill Wheeler.

In the first ground of error complaint is made that Dr. Holbrook, a psychiatrist, was not permitted to testify that he was of the opinion that it would be better for appellant to be placed on probation rather than be sentenced to the Department of Corrections.

Dr. Holbrook testified out of the presence of the jury: 'I think the value of this (being sent to the penitentiary) would be very limited if we are talking about his learning from his punishment. I don't know how he would interpret this experience;' and that probation '* * * with the proper environment and management he might do very well.'

On cross-examination he testified that if the actual conditions of probation or imprisonment were different from the ideal, his answer would be different. ¹

The trial court did not err in refusing to permit Dr. Holbrook to testify before the jury that it would be better for appellant to be placed on probation. If such testimony is allowed, the State would be justified in seeking to put on an expert, perhaps a sociologist or penalogist to prove that it would be better for the defendant to serve time in a penal institution. Then further testimony would no doubt be offered by both sides on the relative values of probation compared to confinement.

To admit the proffered testimony of Dr. Holbrook would be permitting an invasion of the province of the jury. The contention is overruled.

Appellant cites Allaben v. State, Tex.Cr.App., 418 S.W.2d 517, to support the contention that Dr. Holbrook's testimony should have been admitted. Allaben had been convicted for sodomy, the testimony kept from the jury was that he had visited a psychiatrist with his psychological problem and hoped to continue. This Court stated that this excluded testimony should have been admitted, but held that the failure to do so did not constitute reversible error.

In the present case not all of the proffered testimony of Dr. Holbrook was admissible. If appellant wanted the court to admit the testimony that he had been receiving treatment from a psychiatrist as under the Allaben case, he should have specifically pointed out that part of the testimony to the court. The applicable rule is stated in 53 American Jurisprudence, Sec. 140, pp. 124--125:

'It is not incumbent upon the trial court, where evidence offered is relevant or admissible in part only, to separate the good from the bad but it may reject the evidence as a whole.'

The same rule is stated in I Wigmore on Evidence, Third Edition, Sec. 17, p. 320: 'It is for the proponent to sever the good and the bad parts.' See Ford v. State, 41 Tex.Cr.R. 1, 51 S.W. 935, 53 S.W. 869, 1 Branch's Ann.P.C.2d, Sec. 234, pp. 270, 273.

The first ground of error is overruled.

In the second, fourth, fifth and sixth grounds of error, complaints are made that the court erred in its charge to the jury. Assuming that the objections are sufficient under Article 36.14, Vernon's Ann.C.C.P., these contentions will be discussed.

Complaints are made that the trial court failed to apply the law to the facts on murder without malice and failed to give the benefit of reasonable doubt as to the existence of malice.

The court defined murder with and murder without malice and charged the jury on murder without malice and reasonable doubt as follows:

'If you find and believe from the evidence, beyond a reasonable doubt, that on or about the 19th day of February, 1967, in Dallas County, Texas, the defendant did, unlawfully, make an assault in and upon John Walker Wheeler, Jr., with the intent to murder the said John Walker Wheeler, Jr., but you further find and believe, or have reasonable doubt thereof, that from all the facts and circumstances in evidence in this case, the defendant, in making the assault upon the said John Walker Wheeler, Jr., if he did, was not prompted and did not act with his malice aforethought, as the same is defined to you in this charge, then, you...