Sensabaugh v. State
| Decision Date | 03 April 1968 |
| Docket Number | No. 41172,41172 |
| Citation | 426 S.W.2d 224 |
| Parties | Freeman Weldon SENSABAUGH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
H. Edward Johnson, Fort Worth (Court appointed on appeal only), for appellant.
Frank Coffey, Dist. Atty., Jack Neal and Roland H. Hill, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is Murder with Malice; the punishment, assessed by the jury, life.
The sufficiency of the evidence is not challenged and we do not deem it necessary to set forth all the facts. The record does show that the deceased, Grover Cecil Steward, died from massive bleeding resulting from multiple stab wounds inflicted by the appellant in the front yard of the deceased's house at approximately 3 p.m. on November 30, 1966. The State's testimony reflects that approximately one week prior to the killing appellant, in presence of witnesses, displayed a knife, identified as the murder weapon, and threatened to kill the deceased with the same, and further stated he had a pistol if he was unsuccessful with a knife. Such threats were shown to have been communicated to the deceased. Other State's testimony reflects that when the appellant entered the yard just prior to the killing the deceased told him to 'stay out' and fired a shotgun into the ground approximately 30 degrees away from appellant's position. Thereafter it appears that appellant with a knife in hand advanced on the deceased, a struggle ensued and the stab wounds resulted. Appellant's claim of self-defense was rejected by the jury's verdict.
In appellant's first ground of error it is claimed that the improper cross-examination of appellant, permitted by the trial court over objection, resulted in the introduction of unsworn, improper and prejudicial testimony before the jury.
He contends that the prosecutor's questions were framed and calculated to convey to the jury that (1) appellant had encountered the deceased on the morning of the day of the killing, (2) was then armed with a pistol and (3) made the deceased dance by shooting at his feet, (4) that appellant had that morning threatened to kill the deceased and (5) that the deceased was so scared he had his car packed ready to move at the time of the killing, (6) that the police had been looking for appellant all day, and (7) that appellant had threatened to kill his 13-year-old daughter and she had called the police.
'When the defendant in a criminal case voluntarily takes the stand and testifies in his own behalf he occupies the same position and is subject to the same rules as any other witness, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the same case, or his failure to testify on a former trial, or a confession made while he was in jail without his having been first cautioned that it might be used against him.' 61 Tex.Jur.2d, Witnesses, Sec. 36, p. 573.
With such rule in mind we return to the record. Appellant's testimony shows that he had been to the deceased's house twice on the morning of the killing to see Sal Stewart, who lived with the deceased and who later left the scene of the killing with the appellant, but who had died prior to trial. Such testimony does not show that on such occasions he encountered the deceased.
After denying on cross-examination that he had a gun at the time of the killing, a transcription of the court reporter's notes reflects the following:
'Q. But you had it that morning, didn't you, when you went out there to Cecil's house, and told him 'Dance Boy, dance', and you shot at his feet in the floor of that house out there, didn't you?
'A. I did not.
'Q. You had it that very morning, didn't you?
'A. I did not.
'Q. And you pulled it out, and you told him 'Dance'?
It is observed that the question was asked and answered in the negative three times before any objection was interposed.
State's witnesses had related that appellant had threatened to kill the deceased and that these threats had been communicated to the deceased.
Thereafter appellant was asked on cross-examination:
We find nothing in the foregoing to indicate that the question was limited to a threat made only on the morning of the killing.
Appellant disclaimed on cross-examination any knowledge as to whether the deceased's car was packed and ready to move at the time of the killing. No objection was offered to such testimony.
After having stated on direct examination that his only purpose of going to the deceased's house at the time the killing occurred was to see if Sal Stewart was still interested in the purchase of his car, appellant was asked on cross-examination:
'
Appellant's general objection to such question was promptly sustained and thereafter appellant made no request to instruct the jury to disregard or a motion for mistrial.
Subsequently, as the cross-examination changed from subject to subject, the prosecutor, after establishing the appellant's daughter's name, age and address, asked:
Again appellant's general objection was sustained and no further relief was requested by the appellant.
In answer to the prosecutor's questions appellant related that following the killing he had gotten rid of his bloody clothes and that he and Sal had driven around to avoid being 'picked up by the police.' He was then asked:
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...Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968). See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); 1 Branch's Anno.P.C., 2d Ed., § 168, p. 170; 62 Tex.Ju......
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...v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968). The United States Supreme Court presented an example of federal constitutional prohibitions in Doyle. The Court held that ......
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