Shelton v. State
| Decision Date | 24 November 1965 |
| Docket Number | No. 38635,38635 |
| Parties | Gus E. SHELTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William D. Bonham, Houston (On Appeal), Donald L. Martin, Houston (On Appeal), S. John Odom, Houston (On Appeal), for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen Stilley and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for murder; the punishment, fifty years.
This cause was reversed for improper jury argument on a former appeal. Shelton v. State, Tex.Cr.App., 367 S.W.2d 867.
It is undisputed that about 12:55 A.M. on April 21, 1962, the deceased was shot through the heart with a .22 rifle which was at the time in the hands of the appellant, and that said shot was the cause of her death. The appellant and deceased each had a lawful spouse from whom they were not divorced, but were separated; and the deceased had lived with the appellant since January, 1961, until her death, April 21, 1962.
The state's witness Simmons, who lived next door to the appellant and deceased, testified that about 1 A.M., the appellant knocked on his door and stated that he had killed his 'wife (referring to the deceased),' and asked him to call the police. The evidence reflects that the appellant was intoxicated.
The appellant testified that on removing a .22 rifle from a closet, he turned to pick up a scabbard to put it in and, 'It just went off,' and shot the deceased who was sitting on a couch; and that he ran next door and asked his neighbor to call the police, and said, 'Something bad happened at my house.'
Complaint is made of the admission of alleged statements of the appellant which were in the nature of a confession, but they did not comply with the provision of Art. 727a, Vernon's Ann.C.C.P.
The complaint is directed to the question asked the appellant by the state: and appellant replied, 'No, sir, I didn't.' Previously, and without objection, the appellant had testified on cross-examination that, 'I told up there at the police station it was an accident.'
When the accused takes the stand as a witness he is subject to the same rules as any other witness; and the state is not confined in its cross-examination to matters elicited in chief. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781.
It is insisted that the state reversibly erred during its cross-examination of appellant's witness Garrison.
The appellant filed an application for a suspended sentence and the issue of its suspension was submitted to the jury. He called three witnesses, one of whom was Garrison, who testified on direct examination only that they knew appellant and the period of time they had worked with him which was from six to fourteen years. On cross-examination the state asked Garrison if he knew the general reputation of appellant as being peaceful and law-abiding, and if he had heard what his reputation was among the people with whom he worked, and asked for a 'yes' or 'no' answer. Garrison answered 'yes,' but further stated that appellant's reputation among those with whom he worked was good.
The state then asked Garrison if he had heard that appellant was convicted of aggravated assault on a woman in November of 1964, and he answered 'no.' No objection was made to this question. While testifying, the appellant admitted that he had paid a fine in November 1964, after a conviction for aggravated assault on a woman. Next, Garrison was asked if he had heard that appellant was accused of maiming, which was not answered. Appellant's attorney stated: 'I object to that and move that it be stricken.' The 'objection' was sustained and the jury instructed to disregard the question. Next the state asked Garrison if he had heard that the appellant was put under a peace bond, and no answer was given. The appellant's attorney said, 'objection' and moved for a mistrial which was overruled.
The appellant, by filing his application for a suspended sentence authorized the state to...
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...and the like." 1 Branch's Ann.P.C., 2nd ed., § 168, p. 170, and cases there cited. (Emphasis supplied.) See also Shelton v. State, 397 S.W.2d 850 (Tex.Cr.App.1965); Texas Law of Evidence, McCormick and Ray, 2nd ed., § 443, p. 381; 62 Tex.Jur.2d, Witnesses, § 205, p. 130; 98 C.J.S. Witnesses......
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