Smith v. State, 44184
| Decision Date | 23 November 1971 |
| Docket Number | No. 44184,44184 |
| Citation | 474 S.W.2d 486 |
| Parties | Lois Jean SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Bob Hillin, Dallas, for appellant.
Henry Wade, Dist. Atty., and John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
DALLY, Commissioner.
The offense is assault with intent to commit murder with malice aforethought. The jury assessed punishment at twelve years.
Although there are conflicts in the evidence, its sufficiency to support the conviction is not challenged. The evidence shows Clifton Hancock, the victim of the assault, was a former boyfriend of the appellant. The shooting occurred in a lounge where the parties had had a fight on at least one prior occasion. After threats were exchanged, Hancock was struck in the arm and back by two small caliber pistol shots fired by the appellant.
Appellant testified, claiming self-defense, and made application for probation.
The appellant's first two grounds of error complain that without her express waiver, out of her presence and not in open court, the trial court communicated with and gave additional instructions to the jury during their deliberation at the punishment stage of the proceedings in violation of Art. 36.27, Vernon's Ann.C.C.P.
These grounds of error are presented by a formal Bill of Exception which reads as follows:
'Be it remembered that upon the trial of this cause, the jury retired for the deliberation upon the punishment and then later sent out a note and the following proceedings were had out of the presence of the jury and the defendant:
"THE COURT: Let the record show that the jury returned a note and the defense attorney agrees that the Court can answer the question and return it to them without bringing in the jury back into the courtroom.'
'Whereupon the Judge answered the note by agreement of counsel:
'and the note returned to the jury by the Bailiff whereupon the jury returned into court with their verdict.
'Defendant here now tenders her bill of exception No. 1 and asks that same be approved, allowed, signed by the court and filed as a part of the record in this case.
/s/ Bob Hillin
Bob Hillin
'The above and foregoing bill of exception is approved by the court on this 30 day of July, 1970, and ordered filed by the clerk.
/s/ Ed Gossett
'Defense attorney agrees that note was answered correctly and made no objection to same.
/s/ Ed Gossett, Judge'
Art. 36.27, V.A.C.C.P. 1965 provides:
'All such proceedings in felony cases, shall be a part of the record and recorded by the court reporter.'
Does appellant's Bill of Exception reflect error in view of Art. 36.27, V.A.C.C.P. as he urges?
A formal bill of exception must be complete within itself and make manifest the error it purports to show. It must show that the act or ruling complained of could not have been correct. 1 Branch's Ann.P.C. 263, Sec. 229, et seq.; 5 Tex.Jur.2d 318, App. and Err.--Crim., Sec. 195.
The presumption is that the act or the ruling of the trial court is correct. The appellant has the burden of showing that it is not. 1 Branch's Ann.P.C. 263, Sec. 229, et seq.; 5 Tex.Jur.2d 318, App. and Err.--Crim., Sec. 195.
Appellant's bill fails to show that the appellant did not expressly waive the reading of the jury's note and the court's answer in open court and out of her presence. The bill shows only that appellant was not present at the time of this proceeding. Under the provisions of Art. 36.27, V.A.C.C.P., she could have in fact done this; therefore, the bill does not reflect error because the presumption that the trial court acted correctly will obtain. The error urged not being reflected by the Bill of Exception, the first two grounds of error are overruled.
In holding that this Bill of Exception fails to reflect error, we are not approving the procedure followed. Both the court and counsel should see that the provisions of Art. 36.27, V.A.C.C.P. are followed. The court's communication should be by written instruction in open court unless expressly waived by the Defendant. When the jury poses a question, the court reporter should be required to make an accurate record of the proceeding, including the presence or absence of the defendant and defense counsel. The jury's question in this instance should have been answered in a manner similar to this:
The appellant's third ground of error complains that the arresting officer was permitted to testify over objection that appellant made a statement to the effect 'I am sorry I did not kill him this time but I will next time.' Arresting officers called to the scene of the shooting responded to...
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