Ward v. State
Decision Date | 15 November 1978 |
Docket Number | No. 53678,53678 |
Citation | 591 S.W.2d 810 |
Parties | Louis WARD, Jr., Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for murder. The jury assessed the appellant's punishment at twelve years' confinement in the Texas Department of Corrections.
The appellant contends, inter alia, that the trial judge erred by overruling the appellant's objections to three "have you heard" questions asked by the prosecutor during the guilt-innocence stage of the trial. We reverse.
The record reveals that on the evening of December 11, 1974, Arthur Johnson received a phone call from the deceased. Pursuant to that phone conversation, Johnson stopped by the deceased's house at 3213 Sumpter at approximately 8:45 a. m. on December 12, 1974, to loan the deceased some money. The deceased let Johnson in and locked the door. They then proceeded into the deceased's bedroom.
Approximately ten to fifteen minutes later a car drove up in front of the deceased's home. Dolly Aught, the deceased's next door neighbor, saw the appellant get out of his car, look around, open the trunk, get something out and put it into his pocket. The appellant then walked to the deceased's front door. The appellant knocked twice. After the first knock, the deceased look out of her bedroom window and saw the appellant. The deceased started to pick up her purse as the appellant entered the house and came into the bedroom. The appellant had a pistol in one hand. As Johnson watched, the appellant fired two shots at the deceased. The appellant then left. Johnson went outside where he encountered a crowd of neighbors who had heard the shots. At that time he stated that "(h)e shot her and I think she's dead." Aught then called the police and an ambulance.
The police investigation revealed that there had been a forced entry, that one .22 caliber "hull" was on the floor, and that a .22 caliber pistol was found close to the deceased. The .22 caliber pistol had all six bullets in it.
The defensive testimony revealed that two days after the alleged murder the appellant turned himself in to the police. The appellant took the stand and essentially testified that he fired the shots which killed the deceased, but stated that he had been threatened by the deceased. According to the appellant, the threat was made because he was breaking up with the deceased and going back to his wife and family. He also testified that when he entered the deceased's home on the day of the shooting the deceased aimed a pistol at him.
The appellant's first three grounds of error focus on the following three "have you heard" questions which were propounded to the appellant's wife by the prosecutor on cross-examination during the guilt-innocence stage of the trial:
The appellant contends that although the testimony of the appellant's wife put the appellant's reputation in issue the questions did not relate to acts which were inconsistent with any character trait introduced by her testimony.
The appellant relies upon Brown v. State, 477 S.W.2d 617, 619-20 (Tex.Cr.App.1972), in which this Court stated:
Thus, the issue is whether the three "have you heard" questions set forth above were acts inconsistent with the character traits about which the appellant's wife testified.
The testimony of the appellant's wife focused on the behavior of the appellant before and after the appellant met and became romantically involved with the deceased. Her testimony on direct examination by the appellant's counsel, in pertinent part, was as follows:
The appellant's counsel then tried to establish that the appellant had undergone a change after meeting the deceased, and that the deceased had called the appellant almost every night over a three-year period. The appellant's wife also testified that the deceased carried a gun. Thereafter, the following occurred:
The State contends that the present case is controlled by Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973). In Childs the defendant sought probation. During the punishment stage of the trial the defendant's father testified that if the defendant was granted probation he would keep the defendant at home, employ him, supervise his conduct, and assist him in exemplary conduct. The defendant's father also testified that the defendant's conduct had been good while the defendant had been at home. On cross-examination, the defendant's father was asked if "he had heard" that his son had been indicted for robbery and for possession of marihuana and was living with a prostitute who was also a heroin addict.
The defendant contended that his father's testimony was not that of a reputation or character witness and that the questions and answers therefore were improper. This Court stated that the father's testimony was...
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