Sheppard v. State, 52481

• Decision Date: 19 January 1977
• Docket Number: No. 52481,52481
• Citation: 545 S.W.2d 816
• Court: Texas Court of Criminal Appeals
• Parties: Audrey SHEPPARD, Appellant, v. The STATE of Texas, Appellee.

Page 816

545 S.W.2d 816

Audrey SHEPPARD, Appellant, v. The STATE of Texas, Appellee.

No. 52481.

Court of Criminal Appeals of Texas.

Jan. 19, 1977.

Rehearing Denied Feb. 9, 1977.

Calvin W. Wesch, Kermit, Robert Trenchard, Jr., Odessa, for appellant.

James A. Mashburn, Dist. Atty., Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BILL J. CORNELIUS, Commissioner.

Appellant was charged with first degree murder in the shooting of her husband, Delmir Sheppard. The jury found her guilty of the lesser included offense of voluntary manslaughter and assessed punishment at twenty (20) years' confinement.

According to the State's evidence, officers of the Midland Police Department received a call to come to a mobile home occupied by Mr. and Mrs. Sheppard. When the officers arrived they found appellant, her two small children and her husband who had died from several bullet wounds in his head. They also found a pistol which was identified as the one used to shoot the deceased. At first appellant stated that someone had entered their trailer and shot her husband, but she later admitted to the officers that she had shot him.

Appellant contended that she acted in self-defense. She produced evidence of numerous previous beatings of her by the deceased during or after his drinking sprees. She testified that on the day of the killing her husband went to town about 5:30 in the afternoon to look for a pipe trailer. About 7:15 that evening, the deceased returned with a half-pint of scotch and instructed appellant to mix him a drink. Between that time and about 9:00 in the evening, appellant and the deceased watched television while drinking the half-pint of scotch. The deceased then suggested that they go for a ride. Appellant got the two children ready and all of them got into their station wagon and drove to town. They went to a 7--11 store, picked up a six-pack of beer and drove around while drinking the beer. Later they returned to the same 7--11 store and bought another six-pack of beer. On the way home they stopped at two different bars where they continued to consume alcoholic beverages. By this time it was late in the evening. When they finally left to go home, an argument ensued during which the deceased threatened appellant. Upon arriving home, appellant put the two children to bed and prepared a leftover dinner for her husband. While he was eating dinner, he kicked her several times. When he finished he suggested that they go to bed and that everything would be alright. He laid down on the bed in his shorts and t-shirt but the argument commenced again. As appellant sat down on the bed, the deceased started hitting and kicking her again and threatened to 'kick her head in.' He continued to threaten appellant and indicated that if 'he didn't do it now he would do it sometime in the future.' At this point, appellant got up from the bed, got the deceased's loaded .22 caliber pistol from the top of the chest of drawers approximately six feet from where she was sitting and then walked back to the bed. As she reached the bed, the deceased started to come up out of the bed at her. Appellant testified that she then commenced shooting at the deceased. The evidence showed that as many as nine shots were fired with as many as six to eight bullets hitting the deceased in the head.

To rebut appellant's self-defense theory, the State produced medical witnesses who testified that the deceased had an alcohol level of .74 in his blood, ¹ and that with such an amount he must have been unconscious from alcohol at the time of his death and could not have attacked or threatened the appellant.

Appellant relies upon four grounds of error for reversal. The first contends that the court erred in refusing to grant a mistrial when the prosecutor, in violation of a motion in limine, questioned appellant about a prior marriage of hers. During cross-examination the following exchange took place:

'Q (By Mr. Mashburn): All right, I'll start back in 1967, I think on my notes is when you met Mr. Sheppard, is that correct?

'A Yes.

'Q Were you married at that time?

'A Yes, I was.

'Q Who were you married to?

'A An Indian from North Dakota.

'Q What was his name?

'A Meredith Baker.

'MR. TRENCHARD: Your Honor, I am going to object to this. We have a motion in limine as to prior marriage, and the Court has sustained that motion in limine. And I will ask the Judge to instruct the Jury not to regard the last questions and answers for any purpose whatsoever.'

Proof of prior marriages and divorces is not admissible unless such evidence tends to solve some disputed issue in the case. Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Hatke v. State, 455 S.W.2d 310 (Tex.Cr.App.1970). But an error in asking an improper question or in admitting improper testimony may generally be cured or rendered harmless by its withdrawal and an instruction to disregard the same. Except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds, such an error will not call for a reversal of the judgment. Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). In this case appellant's objection to the question was sustained and the court instructed the jury not to consider the question or answer for any purpose. Considering the record here, we do not find the error to be of such a prejudicial nature as to require reversal despite the instruction. Ground of error No. 1 is overruled.

Ground of error No. 2 complains of a remark by the prosecutor while he was stating an objection. During the direct examination of the witness Mrs. Shrupp, she testified that the deceased was violent at times and that she was afraid of him. At that time the prosecutor objected and made the following comment:

'MR. MASHBURN: May it please the Court--excuse me, Counsel. We have no objections to going in with the ruling of the Court pertaining to this. This witness is testifying to events that occurred five years prior to the time we are now in trial, and three years prior to this. And we object. It shows no relevancy. The State is not allowed to go into specific acts of bad conduct concerning--'

The objection was overruled. It is contended that by the above comment the impression was given to the jury that appellant had a history of bad conduct which the State was precluded from exploring. The comment should not have been made, but in view of the fact that appellant was not on the stand at the time, the prosecutor's comment was not completed, and considering the overall record, we conclude that appellant was not harmed.

In grounds of error 3 and 4 appellant contends that the court erred in refusing her special requested instructions relating to self-defense. She requested charges on (1) her right to strike first and (2) the right to arm herself. The charge on self-defense which was given by the court was as follows:

'Upon the law of self defense you are instructed that a person is justified in using force against another when and to the degree she reasonable (sic) believes the force is immediately necessary to protect herself against the other's use or attempted use of unlawful force.

The use of force against another is not justified in response to verbal provocation alone.

A person is justified in using deadly force against another:

(1) if she would be justified in using force against the other; and

(2) if a reasonable person in the defendant's situation would not have retreated; and

(3) when and to the degree she reasonably believes the deadly force is immediately necessary:

(a) to protect herself against the other's use or attempted use of unlawful deadly force.

Now if you find from the evidence beyond a reasonable doubt that the defendant, Audrey Sheppard, did kill the said Delmir Morris Sheppard by shooting him with a gun as alleged, but you further find from the evidence that, viewed from the standpoint of the defendant at the...