Smith v. State, 47872
| Decision Date | 19 December 1973 |
| Docket Number | No. 47872,47872 |
| Citation | 502 S.W.2d 814 |
| Parties | Clay Jack SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
J. L. Phinney, II, Burleson, for appellant.
Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
JACKSON, Commissioner.
The conviction was for murder with malice in a plea of not guilty; the punishment fixed by the jury was life.
The judgment alleged that appellant voluntarily and with malice aforethought killed Norma Jean Smith on March 13, 1972, by shooting her with a gun. Norma Jean Smith was his wife.
A preliminary trial before a jury was held on November 13, 1972, and appellant was found to be sane and capable of standing trial. The case was tried on February 12, 1973, the jury found him to be sane at the time of the offense, found him guilty and assessed his punishment at life.
The sufficiency of the evidence is not questioned.
The first ground of error advanced by counsel is that the court erred in permitting Dr. Sunio, the County Health Doctor, who examined appellant prior to the preliminary trial on sanity, while testifying for the State, to give evidence that during such examination appellant
Art. 46.02, Sec. 2, Par. f, Subsection 4, Vernon's Ann.C.C.P., states:
'No statement made by the defendant during examination into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding no matter under what circumstances such examination takes place.'
There can be no doubt that such evidence was not permissible under the terms of the statute. However, its admission was harmless and does not call for reversal. The written confession of appellant previously introduced in evidence without objection, after the court had in a proper hearing outside the presence of the jury determined that it was voluntary and in full compliance with law, stated in the essential part, omitting the recitals of all necessary warnings:
'On March 13, 1972, I was at my home with my wife Jean Smith and oldest son Mickey Smith. We had all eaten supper together and while Mickey was there with us after supper my wife and I got into an argument because I wanted to borrow some money from her and she did not want to let me have it. She did not let me have it. Mickey left the house some where around six fiften (sic) P.M. He left in his own car and I do not know where he was going. About six thirty I went out to my car and got the twenty two rifle that my mother in law had given me for Christmas. I made it a habbit (sic) in the past to carry the gun in the car. I carried the gun back into the house and put it in the corner of the kitchen leaning against the cabinet. Then I fixed myself a drink of water and went into the living room. I then went back into the kitchen and my wife was standing at the sink, and when I was about five feet from her I shot her one time in the back. She fell and then screamed and looked shocked and I then shot her in the left chest or in that vicinity with the remaining buletts (sic) in the gun. I then put the rifle on top of the refrigerator and took a towel and layed it around the front of her face on the floor. I then left the house got into my car and started for Cleburne but I had a change of mind and instead headed for Hillsboro. On the way to Hillsboro on old 81 highway south of Itasca my car shimmed and went off of the road to the right. I was not hurt. I then started walking towards Hillsboro and got as far as Lovelace and then started following the railroad tracks back towards Itasca. Officer Jenkins met me as I left the railroad tracks and had started towards where my car was. From that time on I have been with the officers to the present time. I have read this statement and it is true.
'WITNESS MY hand this the 13 day of March, 1972.
/s/ Jack Smith
(Signature)
'/s/ John R. MacLean
WITNESS
County Attorney'
Nothing he told Dr. Sunio added any incriminating fact not related in the confession, and thus the error shown by Dr. Sunio's testimony was harmless. See Sierra v. State, Tex.Cr.App., 482 S.W.2d 259; Bain v. State, Tex.Cr.App. 492 S.W.2d 475; 5 Tex.Jur.2d, p. 704, Sec. 446; and many cases collated in 13B Texas Digest, Criminal Law, k1169(2) and (3).
Ground of error number two urged by appellant is that the trial court erred in permitting the State's witness, Maurine Surrat, to testify that she observed bruises on the Body of the deceased, Norma Jean Smith, about four years before her death, and that appellant admitted mistreatment of his wife.
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