Williams v. State, 62001

• Citation: 643 S.W.2d 136
• Decision Date: 24 November 1982
• Docket Number: No. 62001,No. 3,62001,3
• Parties: Ronnie Joe WILLIAMS, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 136

643 S.W.2d 136

Ronnie Joe WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 62001.

Court of Criminal Appeals of Texas,

Panel No. 3.

Nov. 24, 1982.

Rehearing Denied Jan. 12, 1983.

Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and Mike Gillett, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W.C. DAVIS and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

I. The Conviction and the Punishment

Ronnie Joe Williams, appellant, appeals his conviction by a jury for committing the felony offense of Unauthorized Use of a Motor Vehicle. Punishment, enhanced by two prior felony convictions, was assessed by the jury at life imprisonment in the penitentiary. See V.T.C.A., Penal Code, Sec. 12.42(d).

II. The Grounds of Error and This Court's Holding

Appellant presents for review in his appeal two grounds of error. One ground of error complains of a partially unresponsive answer given by Earl Chambers, a State's witness. The other ground of error complains of the trial court's refusal to admit into evidence a judgment pertaining to a previous mental commitment the appellant had sustained in 1972. His grounds of error will be overruled and the judgment affirmed.

III. The Facts Pertaining to the First Ground of Error

The appellant does not challenge the sufficiency of the evidence. Suffice it to say, the evidence shows that the appellant was found guilty of unlawfully operating a 1974 Corvette automobile. See V.T.C.A., Penal Code, Sec. 31.07. The undisputed evidence shows that on January 22, 1978, a Corvette automobile was unlawfully taken from the lot of a used car dealership in Dallas. On January 29, 1978, Earl Chambers, the present husband of appellant's former wife, saw the appellant driving a Corvette that was similar in type and color to the stolen Corvette. The evidence reflects that Chambers and his wife had gone to a liquor store to get a fifth of Strawberry Hill wine and some beer. The record also reflects that while Chambers was inside the liquor store making his purchases, he became aware of the fact that the appellant was outside the store assaulting his wife. Chambers went outside, and intervened with a piece of lead pipe. He struck the appellant's body with the pipe, including hitting the appellant on the head several times with the pipe, which caused abrasions and contusions to appellant's head. Thereafter, appellant got into the Corvette, drove the vehicle into the interior of the liquor store, causing damage to be inflicted to both the Corvette and the store, as well as to Chambers. Chambers testified outside the jury's presence that the injuries he sustained when struck by the Corvette resulted in his being hospitalized for 27 days. After causing the damage to the Corvette and the building, as well as the injury to Chambers, appellant then left in the Corvette. Apparently, the police were notified of what had happened outside the liquor store and of the appellant's act of driving the Corvette into the liquor store. We assume by their later action of stopping a Corvette being driven by appellant that they were given a description of the appellant and the vehicle he was driving when he left the location of the liquor store. On January 30, 1978, the appellant was seen by police officers driving a damaged Corvette, which was later shown to have been the identical vehicle unlawfully taken from the lot of the used car dealership. Appellant later abandoned the vehicle, but after a foot chase by police officers he was arrested.

IV. The Partially Unresponsive Answer Issue

Appellant complains in his first ground of error of the following answer Chambers gave on redirect examination by the prosecuting attorney:

Q: That marriage relationship [between appellant and Chambers' present wife] is it your understanding that that ended back in 1973 or approximately that time?

A: Yes sir, she got it annulled when he got sent to the penitentiary. [Emphasis Added].

Appellant's trial attorney immediately objected to the unresponsive part of the answer, the trial judge sustained the objection, and instructed the jury to disregard the entire answer, but overruled the appellant's motion for mistrial.

Chambers' partially unresponsive answer, "she got it annulled when he got sent to the penitentiary," was highly improper, and, as the trial judge well put it: "the witness should not have made that statement." In fact, in light of what occurred at a hearing outside the jury's presence concerning the admissibility of any of Chambers' testimony the unresponsive part of Chambers' answer bordered on being contemptuous. The record reflects that only part of what occurred at the liquor store was admitted into evidence. The parts about appellant assaulting his former wife, Chambers' assaulting appellant, and appellant assaulting Chambers with the vehicle were excluded from the jury. Appellant's complaint under his first ground of error only addresses the partially unresponsive answer of the witness, Chambers. We agree with appellant that Chambers should not have given, in his answer to the question asked, the above underscored portion of his answer. In Ulmer v. State, 106 Tex.Cr.R. 349, 292 S.W. 245 (1927), this Court was confronted with the following question and answer: "Q: How long had you been living with your father at that time? A: All my life except when he was in the penitentiary." This Court stated: "Its receipt [the fact the defendant had been in the penitentiary] was opposed by the well known and often applied rule of evidence which excludes collateral offenses or transactions not admitted under some exceptions to the rule. The fact that the testimony came unsolicited and not in response to the questions propounded, and was entirely volunteered by the witness, did not render it less harmful to the appellant. It was introduced by the prosecution, and the prosecution is entirely responsible for its presence in the record, and the error is one that cannot be cured." See also Salinas v. State, 146 Tex.Cr.R. 358, 175 S.W.2d 253 (1943) ("Q: You are so well acquainted with him (the defendant) that he calls you 'San'? A: Yes, sir. Q: You have had occasion to see and talk to him? A: Yes, sir, since he returned from the penitentiary." Held, notwithstanding an instruction from the trial judge, the error was not harmless in view of the fact that the maximum punishment was assessed.) However, our research also reveals that error will not necessarily be reflected in every unresponsive answer by a State's witness which implicates a reference to the fact that a defendant has been "sent to" or incarcerated in the penitentiary. Even where such prejudicial information is inadvertently placed before a jury, the general rule is still that an...