Wood v. State

• Decision Date: 26 June 1974
• Docket Number: No. 47835,47835
• Citation: 511 S.W.2d 37
• Parties: Gerald WOOD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 37

511 S.W.2d 37

Gerald WOOD, Appellant, v. The STATE of Texas, Appellee.

No. 47835.

Court of Criminal Appeals of Texas.

June 26, 1974.

Rehearing Denied July 17, 1974.

W. V. Dunnam, Jr. (on appeal only) Waco, for appellant.

Martin Eichelberger, Dist. Atty., Ward Casey, Asst. Dist. Atty., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for murder with malice wherein the jury assessed the punishment at fifteen (15) years' confinement in the Texas Department of Corrections.

Sue Benton was the only incriminating witness offered by the State. Dr. Ronald Henderson testified to the cause of death as being multiple gunshot wounds, and Douglas Parker made a call to the scene where he found the body of the deceased. Harold Denton testified about a property release card from the Waco Police Department.

Sue Benton testified that on the date in question she had been drinking that evening with the deceased, Thomas Heffington, and her sister, Nelda Conner, also known as 'Jackie.' It appears from the evidence that prior to the occasion in question 'Jackie' had been having an affair with the appellant, but at the time of the alleged offense she had been bestowing her affections on the deceased. After the drinking session mentioned continued at several lounges, Sue Benton left her sister and the deceased and went to the Westview Lounge, managed by the appellant, and later asked him to drive her home. Appellant indicated he wanted to know where Jackie and the deceased were, and the two drove around looking for them. After the second stop at the house of Sue Benton's parents, she affirmed he said, 'If the sonabitch (sic) is there, I am going to kill him.' He disappeared into the house and she heard several shots. When he emerged, she heard the appellant say, 'I killed him, I shot him.' When she stated the police should be called, the appellant told her to get out of the car, as he was leaving because he was not going to spend the night in jail. She entered the house and found the deceased on a bed. He had no pulse.

Appellant advances eighteen grounds of error.

First, we shall consider appellant's contention that the trial court erred in admitting, over objection, 'the written statement of Sue Benton made to an officer outside of Court without the presence of the defendant.'

On direct examination Sue Benton testified she could not remember what the appellant said before he left the car and went into the house just prior to the shooting. The prosecutor then handed her a written sworn statement she had made to a police officer shortly after the shooting to refresh her memory, but she testified she didn't remember the appellant saying, 'If the son of a bitch is there, I am going to kill him.' The court sustained the objection the State was attempting to impeach its own witness, and the prosecutor moved on to other matters.

Later, on cross-examination defense counsel inquired:

'Q Is there anything about the statement Mr. Casey has in his file, that he showed you a while ago, which is incorrect?

'A That thing, the police statement, I can't remember now Gerald saying he was going to kill him. If he did, I don't remember it now.

'Q In other words, he might not have said that?

'A He might not have; I don't remember it.'

Thereafter, on redirect examination the prosecutor inquired if the witness 'wouldn't remember a little ole insignificant detail like that . . ..' Upon objection that the State was attempting to impeach its own witness, the prosecutor stated, 'Your Honor, she gave a prior inconsistence (sic) statement under oath.' Appellant's objection was overruled. A hearing was then held in the absence of the jury. The prosecutor was sworn and claimed surprise that the witness Benton had not testified in accordance with the statement given to police regarding a threat made by appellant just prior to going into the house where the homicide occurred. He urged that she was a 'hostile' witness and testified '. . . we are fixing to file on her for either false swearing, or purgery (sic).'

The prosecutor then asked to impeach his own witness. When the court asked the witness if she had anything to say, she replied:

'A Yes, sir. This has been almost seven months since this incident has happened. If I said that, and I swore to it, I meant it. And this--like I said, I can't remember word for word what was said. If it's on that paper, or any of it, that I said it, it's true. And I don't see how you can sit there and want to impeach me for something that happened along (sic) time ago, because I can't remember it word for word.

'MR. CASEY (Prosecutor): That isn't what came down to the Jury. You said, I didn't say that, and they kept making mistakes and everything.

'A I said, that I didn't remember. I didn't say I didn't say it. I said, I didn't remember. If it's on that paper, I said it, because I am not a liar.'

The court withheld its ruling.

The next day, again in the absence of the jury, the prosecutor urged he be given the opportunity to impeach the witness. Appellant's counsel pointed out that the witness had simply failed to remember what was in her statement, had now confirmed her statement, and was not a 'hostile' witness to the State. He urged that under these circumstances the witness was not subject to impeachment.

Nevertheless, the court stated: 'I am going to grant the motion to impeach the witness.'

Thereafter, in the presence of the jury the prosecutor established that the statement had been given under oath and inquired if the statement contained the following:

'. . . 'I watched him walk up to the house, and he told me if the son of a bitch is there, I am going to kill him. I was sitting there waiting and I heard three shots. I waited, and Gerald Wood came running out back to the car and said, 'I killed him, I shot him." Is that true, or is that false?

'A I remember the last part of it. Now, like I told you yesterday, this has been nearly 7 months ago. And if he said the first phrase--if I said it that night, it was fresh on my mind, and he said it, because I swore to it. And as you can see, I signed it. But I am just human like anybody else. I forgot.

'Q All right. Is it true, or is it false?

'A I suppose it's true, if I signed it, because I am not going to lie about it.'

The State then offered the entire statement into evidence over the objection that 'it's not factually given. It's at least inconsistent with the testimony that was received in the trial, and I suggest that it is not worthy to be admitted into evidence.' The objection was overruled.

Much confusion seems to exist among the bench and bar about when a party may impeach its own witness. It is nevertheless well established that a party introducing a witness cannot attack his or her testimony Unless the witness has stated facts injurious to such party. Article 38.28, Vernon's Ann.C.C.P.; Mims v. State, 159 Tex.Cr.R. 180, 261 S.W.2d 727 (1953); Wall v. State, 417 S.W.2d 59, 61 (Tex.Cr.App.1967); Norwood v. State, 486 S.W.2d 776 (Tex.Cr.App.1972); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972). It is not sufficient to justify impeachment that the witness merely fails to testify as expected or to remember facts favorable to the party calling the witness. Crandall v. State, 170 Tex.Cr.R. 229, 340 S.W.2d 36 (1960); Wall v. State, supra.

'In other words, notwithstanding that the party is surprised thereby, it is not enough that the witness simply disappoints the expectations of the party, by failing to give testimony as beneficial as was expected.' 62 Tex.Jur.2d, Witnesses, Sec. 326, p. 345.

In the instant case the witness did not testify that the statement was not made by appellant, only that she could not now remember if he had made such statement. Under such circumstances, she had not stated facts injurious to the State, and she was not the proper subject for impeachment by the State, who had called her as a witness. ¹ The statement should not have been admitted under the guise of impeachment. See and compare Rice v. State, 135 Tex.Cr.R. 390, 120 S.W.2d 588 (1938).

We must, nevertheless, determine if the statement was admissible under some other theory.

In McCormick and Ray, Texas Law of Evidence, 2d ed., Sec. 541, p. 438, it is written:

'There are two stages of recollection as far as the law of evidence is concerned. It is important at the outset to point out the distinction between them. In the first place there is the recollection which the witness ordinarily exhibits on the stand. This is known as Present Recollection. Then there is that recollection which the witness once possessed, but which has now vanished and is available only if preserved by some memorandum. This will be referred to as Past Recollection.

'In Present Recollection the witness has some recollection of the event or matter in question and after being permitted to look at the paper or memorandum he then speaks from memory. The important thing and that which goes in evidence is the revived recollection of the witness. Since the witness speaks from memory and not from the paper the manner in which the recollection is refreshed should not make a great deal of difference.

'In Past Recollection the witness usually has no present recollection whatever, but desires to use that recollection which he once had by offering a record of that past recollection. He says, 'I have no recollection now, but when my memory was still fresh I made a correct memorandum. I can offer this memorandum which contains my past recollection.' The important thing here is the memorandum. It goes in evidence. So the accuracy and identity of the record must be assured. Thus it will be seen that a memorandum may be used in two ways, i.e., to refresh a present recollection or as evidence of a past recollection.

'This distinction has not always been observed by the courts and there is today much confusion about it. ...