Stevens v. State

• Decision Date: 16 May 1984
• Docket Number: No. 63965,63965
• Parties: James Arthur STEVENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 517

671 S.W.2d 517

James Arthur STEVENS, Appellant, v. The STATE of Texas, Appellee.

No. 63965.

Court of Criminal Appeals of Texas En Banc.

May 16, 1984.

Rehearing Denied July 11, 1984.

William A. Bratton, III, Dallas, for appellant.

Henry Wade, Dist. Atty., Gregory S. Long, Marian Jenkins and James Walker, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

A jury convicted appellant of attempted murder; the court, finding that the enhancement paragraph of the indictment was true, assessed punishment at thirty-five years' confinement.

Appellant asserts five grounds of error: the admission into evidence of oral statements made while under arrest, the prosecutor's use of leading questions with his own witness, inquiry by the prosecutor into details of a prior conviction used for impeachment, and denial of two of appellant's requested charges.

Appellant and the complainant, Lonnie Carter, had known each other for many years. On June 1, 1978, Carter met appellant at about 10:00 a.m. at a recreation center where they both played pool. Carter asked appellant if he wanted to run some errands with him and have dinner at Carter's apartment later that day with Carter and his daughter. Appellant accepted and the two proceeded accordingly.

Carter's daughter and a fourteen-year-old cousin met appellant and Carter at the apartment. During the course of the afternoon, Carter, upset by appellant's behavior toward the cousin, remonstrated with appellant. Carter testified that appellant had talked to her as he would to an older lady, as if he wanted to date her.

Carter drove appellant back to the pool hall. The two continued to argue on the way there and after arriving. Appellant pointed his finger in Carter's face and Carter threw a beer can at him, hitting appellant and spilling some beer on him. Carter then went inside and played pool; appellant went home.

A short time later appellant returned to the pool hall with a .22 pistol in his pocket. The owner of the pool hall, Ernest Milton, testified that he saw appellant coming back and stopped him at the door. Appellant said he just wanted to talk to Carter. Appellant and Carter began arguing again and Milton told them to take the argument outside. Milton pushed appellant outside and Carter agreed to go outside and talk to appellant. The argument continued outside. After a few minutes Carter turned his back to appellant and started to walk back inside the pool hall. Appellant took out the pistol and pulled the trigger. The gun clicked but did not fire and Carter turned to reach for it. Appellant then fired three shots, the bullets hitting Carter in the head, upper chest and back. According to two witnesses, appellant walked away and then came back, walked up to the prostrate Carter, kicked him in the face, and said "This son of a bitch ain't dead yet?" Appellant then ran across the street into a park.

Officer K.W. Beck, a Dallas police officer, testified that, while driving on Oakland Street, he heard a shot and, looking in the direction of the sound, saw two men facing each other. One, whom Beck identified as appellant, had a gun; the other was standing, but holding on to a post. Beck saw appellant fire two more shots and walk away, then walk back and kick the fallen man in the face, then run into the park.

Beck left his car and chased appellant. Beck had his gun drawn and identified himself as a police officer. Appellant looked at him, threw the gun away, and raised his hands. Appellant asked Beck what he wanted him to do. Beck told him to lie on the ground. As he was getting down on the ground appellant said, "Where did you come from? Why couldn't I have gotten away with it?"

Appellant's version of the shooting is a little different. He claims that Carter started to walk away, spun back toward appellant and reached at him. Appellant claims that he backed up, tripped and almost fell on the ground. At that point, he says, Carter was right on top of him, and he then pulled and fired the gun because he was afraid he would be attacked by Carter's friends and because he wanted to get Carter off of him. Appellant contends that the trial court erred in admitting the statements he made to Officer Beck.

Appellant contends that these statements were made while under arrest and in custody and should have been suppressed. Art. 38.22, Sec. 5, V.A.C.C.P. states:

Sec. 5. Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.

Appellant's statements are admissible in either of two ways: first, the statements were voluntary statements, made while in custody but not in response to interrogation; Sanchez v. State, 589 S.W.2d 422 (Tex.Cr.App.1979); Earnhart v. State, 582 S.W.2d 444 (Tex.Cr.App.1979); second, the statements fit the res gestae exception of Art. 38.22, Sec. 5. Appellant's statement, made as he was fleeing the scene and was surprised by Beck minutes after the shooting, clearly qualifies as a res gestae statement. Gordon v. State, 608 S.W.2d 638 (Tex.Cr.App.1980); Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979). The court properly admitted the statement. The ground of error is overruled.

Appellant next complains that the prosecutor used leading questions during the direct examination of a witness. Ernest Milton testified on direct examination that Carter had turned "kind of sideways" to go back into the pool hall when appellant pulled the gun and tried to fire, but the gun clicked and did not fire. He said that after that click Carter turned and tried to grab the gun and appellant shot him three times. On cross-examination Milton testified to essentially the same facts when the defense counsel sought to clarify his testimony:

Q. You said, I believe--if I'm correct--on direct examination you said that then Lonnie Carter started to turning around and walk off?

A. Right.

Q. All of a sudden spun back around and Stevens pulls his gun out?

A. He spun around like that.

Q. And it clicked once?

A. Correct.

Q. Jitters goes for it?

A. Correct.

Q. It's fired and fired again?

A. Correct.

Q. And fired again and then Jitters slumps to the ground?

A. Three times.

Q. But it was after Jitters turned around that it clicked?

A. He hadn't turned all the way around.

On redirect the testimony of which appellant now complains was the following:

Q. Mr. Milton, let me just correct or go over one thing with you that Mr. Bratton said. I want to be clear on that. Just before the gun was fired--when Lonnie Carter was walking into your place, has turned around from James Arthur Stevens, right?

A. Correct.

Q. Now, is that when he pulls out the gun and clicks it?

A. When he, Lonnie--you know, he started to walk away and-- Q. As he started to walk away--

A. Right.

Q. --is that when james arthUr stevens puLls the gun?

A. Correct.

Q. And it clicks for the first time, is that right?

A. Correct.

Q. It is after the click that Lonnie Carter turns around and tries to grab the gun?

A. That's correct.

MR. BRATTON: Your Honor, I object to him, the Prosecutor, at this time leading the witness and getting him to tell the story exactly the way he wants it told. It's his witness. He should ask the questions and let the witness tell the story.

MR. WALKER: I think Mr. Bratton asked some questions there that I believe I have a right to respond to.

MR. BRATTON: he is trying--

THE COURT: I think you've covered it pretty well, Counsel. Let's move along.

Q. (By Mr. Walker) It wasn't like Mr. Bratton said--that Lonnie Carter spun around?

A. (By the Witness) No, he didn't spin around.

Q. --and went after james arthUr stevens anD that is when the gun got pulled out?

A. No.

MR. BRATTON: I continue to object to the Prosecutor testifying and putting the story the way he wants it. The witness has already testified. Ask him what happened. You don't need to testify.

MR. WALKER: I'm asking questions, if I might.

THE COURT: Let's move along.

Q. (By Mr. Walker) What happened first? Let's do it this way. Did Lonnie Carter turn around or James Arthur Stevens pull the gun first?

A. (By the Witness) James Stevens pulled the gun first and when he pulled the gun he clicked it. Lonnie was walking away. When Lonnie heard the click, Lonnie spun around and he was trying to get up to Stevens when the gun fired.

We overrule appellant's ground of error for several reasons. First, the objection was made only after several questions and answers now complained of were already given and unobjected to. An objection must be timely, i.e., at the earliest opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); second, appellant never secured a ruling on his objection to the leading--an adverse ruling is necessary to preserve error; Bryant v. State, 570 S.W.2d 921 (Tex.Cr.App.1978); finally, the redirect had no material effect on the witness' prior testimony. Milton remained quite consistent in his testimony. Appellant's claim that the questions supplied the witness with a false memory of critical facts is without support in the record.

Appellant acknowledges that the use or prohibition of leading questions rests in the discretion of the court. Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App.1973); Ballew v. State, 452 S.W.2d 460 (Tex.Cr.App.1970). When the court allows a confusing or incorrect impression to be clarified by the use of leading questions reversible...