Yates v. State

• Decision Date: 22 May 1974
• Docket Number: No. 48163,48163
• Parties: Samuel Dewey YATES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 600

509 S.W.2d 600

Samuel Dewey YATES, Appellant, v. The STATE of Texas, Appellee.

No. 48163.

Court of Criminal Appeals of Texas.

May 22, 1974.

Rehearing Denied June 12, 1974.

W. L. Burke, Jr., Abilene, for appellant.

Ed Paynter, Dist. Atty. and Patricia Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. The jury assessed the punishment at life.

A previous conviction for this homicide was before this Court in Yates v. State, Tex.Cr.App., 489 S.W.2d 620.

The sufficiency of the evidence is not questioned.

The proof shows that the appellant shot his wife some six times with a pistol and killed her. This was after an argument arose about the 17-year-old daughter of the deceased, Carol, coming in late after a date. During the discussion, the deceased became angry when the appellant undressed in front of Carol and the argument became heated. All of the evidence set out in the first opinion will not be repeated.

The appellant testified that he shot the deceased after she said, 'I'll kill you,' and after she placed her hand on top of a loaded gun in a drawer of a chest of drawers. His confession in which he admitted the shooting was introduced. ¹

The court submitted a charge on self-defense.

First, appellant contends that the court erred in admitting into evidence tape recordings of a conversation that he had with the deceased when they were separated while divorce proceedings were pending. These were offered after appellant had testified, apparently for impeachment. His contention that the proper predicate was not laid is overruled. He testified that he personally taped this conversation with his wife and that the voices were theirs. He contends that the tapes of the conversation were not properly offered or admitted into evidence. When the tapes were played before the jury they were admitted in evidence. See Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199, and Richardson v. State, Tex.Cr.App., 475 S.W.2d 932. We hold that they are admissible.

The discussion, as recorded upon the tapes, was some ten months prior to the homicide and was about their previous marital difficulties.

Appellant contends that the part of Article 1257a, Vernon's Ann.P.C., pertaining to the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, does not apply to something ten months earlier because they were too remote.

In Baker v. State, Tex.Cr.App., 368 S.W.2d 627, the son of the accused was permitted to testify that the accused struck his wife some six years prior to the homicide over the objection that this was too remote. This was held admissible because it showed their previous relationship under Article 1257a. The Court also noted that it was shown that the conduct continued.

The discussion and argument in the present case started over Carol's coming home late. The appellant's testimony showed a continuation of their arguments especially over disciplinary matters concerning her and the children.

Appellant cites Brown v. State, 56 Tex.Cr.R. 389, 120 S.W. 444; Hamilton v. State, 83 Tex.Cr.R. 90, 201 S.W. 1009, and McAnear v. State, 43 Tex.Cr.R. 518, 67 S.W. 117, on the question of remoteness. These were decided before Article 1257a, supra, was enacted. The Brown case supports his position where there had been a complete reconciliation.

In 4 Branch's Ann.P.C.2d, Section 2224, page 577, it is written:

'There is a conflict of authority on the question as to whether evidence of threats is admissible where a complete reconciliation has been shown. Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231 (holding in favor of admissibility of the evidence).

'Contra: Brown v. State, 56 Tex.Cr.R. 389, 120 S.W. 444; Hamilton v. State, 83 Tex.Cr.R. 90, 201 S.W. 1009. Under article 1257a, of the Penal Code, the universal and accepted notions as to what constitutes relevancy have been changed, and in order to show the state of mind and relationship of the parties, evidence of threats should be admissible just as any other fact in the case; and the case of Powdrill v. State, supra, is believed to state the law and the rule which now governs. Upton v. State, Tex.Cr.App., 20 S.W.2d 794; Duke v. State, 147 Tex.Cr.R. 533, 182 S.W.2d 808.'

In Duke v. State, supra, it was stated that reconciliation was lightly regarded and a controversial subject in this State.

Powdrill v. State, 69 Tex.Cr.R. 340, 155 S.W. 231, held that evidences of former quarrels are admissible into evidence where objections of remoteness and reconciliation were made. There the Court cited Leech v. State, 63 Tex.Cr.R. 339, 139 S.W. 1147, 1152, which held that threats are admissible in homicide cases to show malice and motive.

It should be noted that this is not a divorce case, but a murder case.

We hold that remoteness does not apply and that reconciliation, if such be shown, does not apply, and evidence of prior difficulties was admissible under the general rule of evidence even before the adoption of Article 1257a, supra. See Smith v. State, Tex.Cr.App., 502 S.W.2d 814.

In Brooks v. State, Tex.Cr.App., 475 S.W.2d 268, this Court noted that the Legislature enacted the statute to cover the general rules of evidence already in existence.

Next, appellant contends that reversible error was committed at the punishment stage of the trial during the argument of the district attorney when the following occurred:

'Sam (Appellant) is sitting over there with his hand over his eyes and crying, with his new wedding ring on, or whatever that is.

'Mr. Burke (Appellant's counsel): Pardon me, Your Honor, we object to that allegation. He's not married and he knows that. That's the wedding ring of Mickey Yates when they were married.

'Mr. Paynter (District Attorney): Well, whatever it is.

'Mr. Burke: We object to that, and ask that the jury be instructed to disregard the comment.

'The Court: All right. I will ask the jury to disregard the comment.'

A motion for mistrial was overruled.

The argument of the prosecutor should not have been made. In view of the answer of appellant's counsel and the instruction of the court for the jury not to consider the argument, we hold that reversible error is not shown.

Next, complaint is made that the court erred in admitting into evidence State's Exhibit No. 2, a sketch of the trailer house where the homicide occurred, because it was not drawn to scale.

An officer who went to the trailer house shortly after the homicide testified that he made the sketch but not to scale. A second exhibit, apparently drawn to scale, was substituted for the original exhibit. Several witnesses testified, without objection, that it was accurate.

Even though a drawing is not exact in every detail, an objection goes to its weight rather than its admissibility. Creel v. State, Tex.Cr.App.,493 S.W.2d 814.

There is no showing that the sketch, before it was replaced, was inaccurate so as to be harmful. No error is shown.

Next, the appellant complains that reversible error was committed because the jury was made aware that divorce proceedings had been previously pending between him and his wife. He relies, in part, on the reversal of his prior case by this Court because the divorce petition, supplemental divorce petition and two restraining orders against him were introduced into evidence over proper objections.

We note at the outset that appellant's prior case was...