Stewart v. State

• Citation: 587 S.W.2d 148
• Decision Date: 13 June 1979
• Docket Number: No. 2,No. 57270,57270,2
• Parties: James STEWART, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 148

587 S.W.2d 148

James STEWART, Appellant, v. The STATE of Texas, Appellee.

No. 57270.

Court of Criminal Appeals of Texas, Panel No. 2.

June 13, 1979.

Rehearing Denied Oct. 17, 1979.

Warren E. Burnett and Richard J. Clarkson, Odessa, for appellant.

Vern F. Martin, Dist. Atty., and Timothy A. Sloan, Asst. Dist. Atty., Midland, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for voluntary manslaughter. The punishment is imprisonment for seven years.

Appellant contends that a charge on involuntary manslaughter should have been given; the trial court erroneously admitted in evidence a statement made by appellant prior to his being advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1960); evidence of appellant's reputation for truth and veracity was improperly excluded; the trial court erroneously instructed the jury concerning testimony by the spouse of a defendant in a criminal case; and the State committed reversible error by subpoenaing appellant's wife as a witness, having her sworn, and having her excluded under the witness rule.

Sometime between 1:00 and 1:30 a. m. on August 20, 1976, appellant fatally shot Bobby Dean Sargent as the two stood in the office of the Red Fox Club, a restaurant and bar in Midland owned by appellant. The shooting was the culmination of an argument between appellant and the deceased over the whereabouts of a stag film belonging to the deceased. The argument began in the bar, then moved to the kitchen, where appellant struck the deceased at least once with his fist and where police later found a number of broken dishes. Appellant testified that he left the deceased in the kitchen and went to the office to call Jack Sites, who appellant believed might have the deceased's film. Appellant described the subsequent events as follows:

"Q. All right. Did you when you went in the office, did you lock the door?

"A. I don't remember whether I closed it or locked it I don't know. I wouldn't have locked it. I never do. But I don't even remember whether I closed it or not.

"Q. And you were going to call Mr. Jack Sites?

"A. Yes, sir.

"Q. Well, did you start to call Mr. Sites?

"A. Yes, sir.

"Q. All right. And when you started to call Mr. Sites, did you ever on that occasion, did you get a chance to talk to him?

"A. Well, yes, sir.

"Q. All right. You talked to Sites from the little office?

"A. Yes, sir.

"Q. All right. Now when you started to dialing Sites' number, what happened?

"A. Sargent came bursting through there. And there is a lot of stuff laying around in there. And whenever he did, he scared me. He just come running in there, you know, just like he was mad I don't know, he kind of had a crazed look in his eyes.

"Q. Did the door fly open?

"A. I think it did I don't remember exactly, whether the door was closed or whether it was opened.

"Q. There is evidence here that the door was forced open. Did you force it open?

"A. No, sir.

"Q. All right. And when the door opened, did the door hit you?

"A. I don't remember whether the door hit me or not.

"Q. All right. When he came in the room, what did you do?

"A. When he came running in there, he looked at me, and we kind of he kind of grabbed at me. And I pushed him back I had a pistol in my pocket. I pulled it out and I fired a shot. And I said, 'Now, Sargent,' I said, 'just wait.' I said, 'I'm going to get Jack on the phone so he can tell you where your films are,' I said, 'because I don't have them.'

"Q. All right. What did he do then?

"A. Well, he stood there for just a minute or seemed like a minute, I don't know, and I'm dialing Jack. And I got Jack on the phone . . .

"Q. All right. Now did you start talking to Mr. Sites?

"A. Yes, sir, I did.

"Q. Did you still have the gun in your hand?

"A. Yes, sir.

"Q. All right. What happened then?

"A. Well, Sargent, he lunged at me. And whenever he did I was talking to Jack on the phone. And he grabbed the telephone, and grabbed me with the other hand. And I tried to swing he got the phone loose from me. And then I remember that I was going back I don't know whether I fell or not, and I shot I guess I shot again.

"Q. All right. Now if that man had got ahold of the gun, and got the gun in his possession, is there any doubt in your mind, then or now, but what you would have been a dead man?

"A. Yes, sir. I think he would have killed me.

"Q. Did you have any reason on earth to want to kill that man?

"A. No, sir.

"Q. Did you have any reason on earth to have the gun, other than to protect yourself?

"A. No, sir.

"Q. And when he came at you, and you standing there talking on the phone, and with the gun in your hand, was there any question in your mind but what if he got the gun away from you, that you were going to get shot?

"A. Yes, sir he scared me. I was afraid.

"Q. All right. You are in this little bitty room. Had you invited him in the room?

"A. No, sir.

"Q. Do you even remember, as far as that's concerned, pulling the trigger?

"A. No, sir, I don't. I do the first time, but I don't remember the second time.

"Q. Were you doing anything to the man when he made this lunge at you, other than telling him that you were going to get the man on the phone, to satisfy him about them films?

"A. That's right. I told him that. And I was talking to Jack whenever he lunged at me.

"Q. And that's when the gun was fired?

"A. Yes, sir.

"Q. And you had no intention on earth to do anything, other than to protect yourself?

"A. Yes, sir."

Appellant was indicted for murder. The trial court charged the jury on the lesser included offenses of voluntary manslaughter and aggravated assault, and on the law of self-defense. Appellant contends that the trial court erred by refusing his requested charge on involuntary manslaughter.

A person commits involuntary manslaughter when he recklessly causes the death of an individual. V.T.C.A. Penal Code, Sec. 19.05(a)(1). A person acts recklessly or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. V.T.C.A. Penal Code, Sec. 6.03(c).

When we read appellant's testimony in light of Sec. 6.03(c), supra, we find no evidence that appellant acted in a reckless manner. Indeed, appellant testified that he shot the deceased in order to ward off the latter's attack. The trial court did not err in refusing to submit a charge on involuntary manslaughter. See Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977); Scott v. State, (No. 55, 659, decided May 23, 1979 Tex.Cr.App.1979).

Officer David Wilks testified that he was dispatched to the Red Fox Club to check out a report of an accidental shooting. Outside the club, he met an acquaintance who told him that appellant had shot someone. Wilks entered the club, saw appellant, with whom he was also acquainted, and asked appellant what had happened. Appellant told Wilks that the deceased had locked himself in the office and shot himself, and had told appellant not to call the police. Appellant contends that his answer to Wilks' question was improperly admitted over his objection because he had not been advised of his constitutional rights.

In Miranda v. Arizona, supra, the United States Supreme Court stated that its decision was "not intended to hamper the traditional function of police officers in investigating crime . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." 384 U.S. at 477, 86 S.Ct. at 1629. Although Wilks had been told that appellant had shot someone, this information was not inconsistent with the initial report of an accidental shooting. There is nothing in the record to establish that appellant had become the focus of a criminal investigation when Wilks asked him what had happened. To the contrary, it is clear from the record that appellant's statement was made during the investigatory process as a part of the general on-the-scene questioning by Wilks. The trial court did not err in admitting the statement. Lovel v. State, 538 S.W.2d 630 (Tex.Cr.App.1976); Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976); Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.1972).

Appellant contends that the trial court erred by refusing to permit testimony at the guilt phase as to appellant's good reputation for truth and veracity. He argues that this testimony was admissible because Wilks' testimony concerning appellant's statement to him was in direct contradiction to appellant's trial testimony.

This contention is without merit. First, Wilks' testimony and appellant's testimony are not contradictory; at no time did appellant deny making the statement attributed to him by Wilks. Moreover, even if the testimony were contradictory, evidence of appellant's good reputation for truth would not have been admissible. The rule is well stated in Wallace v. State, 501 S.W.2d 883 (Tex.Cr.App.1973):

"In Matthews v. State, 80 Tex.Cr.R. 177, 189 S.W. 491, this Court, in sustaining the trial court's refusal to permit defendant to prove by two witnesses his good reputation for truth and veracity, said:

" 'The rule is well established that, if the state had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof; but, until such contingency arises, the fact that he gives testimony disputing that offered by the state would make no such testimony admissible.' (Citations omitted.)

"The State had not impeached appellant by proving contradictory...