Hector v. State

Court of Criminal Appeals of Texas

Hector v. State

246 S.W.2d 212, 157 Tex. Crim. 11, 1951 Tex. Crim. App. LEXIS 1835

CourtCourt of Criminal Appeals of Texas

DecidedDecember 19, 1951

DocketNo. 25594

StatusPublished

This text of 246 S.W.2d 212 (Hector v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hector v. State, 246 S.W.2d 212, 157 Tex. Crim. 11, 1951 Tex. Crim. App. LEXIS 1835 (Tex. 1951).

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Opinions

MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, one year on the penitentiary.

No statement of facts accompanies the record.

The one bill of exception reflects that the following occurred. A Mrs. Stitts was called as a witness and asked the following question by appellant's counsel: “Is Millard (referring to the appellant) getting better?” To this question, she answered:

“Millard is getting much better. He is much better than he was. He don’t give me any trouble at all, and the times when I have seen him, he is always just as sweet to me as he can be, and he’s a hard working boy, and I want you Jury men to remember that a few seed of mercy scattered here will flourish in the sky, and my boy don’t need to go to the penitentiary. He is not a criminal. Remember that. He is not a criminal. He is an honest, good boy, and I need him. If he had something to be sent down there for, it would be different, but God, knows and I know that a few seed of mercy scattered here will flourish in the sky. He is the best hearted boy you ever saw, and I am not saying it to boast. I am thankful to God because he has a Christian mother. He has a Christian mother and he had a Christian father.”

At the conclusion of this answer or voluntary statement, none of which was objected to by appellant nor did he make any effort to stop her, the prosecutor asked the witness, “He has [13]*13been convicted of burglary, has he not?” The witness did not answer, and the question was asked again. At this juncture, appellant objected, and the court instructed the jury not to consider the testimony. Following this, the prosecutor asked, "Has he been convicted of aggravated assault?” Here, the appellant moved for a mistrial, which was denied, but the court stated to the jury:

“I think she went too far, but Gentlemen don’t consider it, don’t ask anymore questions on that line; forget her testimony about his being a criminal and just don’t consider it for any purpose.”

If appellant did not intend to place in issue his reputation as a law abiding citizen, he should have acted promptly in an effort to stop his witness. This he failed to do, and the trial judge responded to his objection when finally advised that appellant contended that his reputation was not in issue. We are unable to agree that the trial court erred in refusing to declare a mistrial because of the unanswered questions of the district attorney.

Finding no reversible error, the judgment of the trial court is affirmed.

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MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, one year on the penitentiary.

No statement of facts accompanies the record.

The one bill of exception reflects that the following occurred. A Mrs. Stitts was called as a witness and asked the following question by appellant's counsel: “Is Millard (referring to the appellant) getting better?” To this question, she answered:

“Millard is getting much better. He is much better than he was. He don’t give me any trouble at all, and the times when I have seen him, he is always just as sweet to me as he can be, and he’s a hard working boy, and I want you Jury men to remember that a few seed of mercy scattered here will flourish in the sky, and my boy don’t need to go to the penitentiary. He is not a criminal. Remember that. He is not a criminal. He is an honest, good boy, and I need him. If he had something to be sent down there for, it would be different, but God, knows and I know that a few seed of mercy scattered here will flourish in the sky. He is the best hearted boy you ever saw, and I am not saying it to boast. I am thankful to God because he has a Christian mother. He has a Christian mother and he had a Christian father.”

At the conclusion of this answer or voluntary statement, none of which was objected to by appellant nor did he make any effort to stop her, the prosecutor asked the witness, “He has [13]*13been convicted of burglary, has he not?” The witness did not answer, and the question was asked again. At this juncture, appellant objected, and the court instructed the jury not to consider the testimony. Following this, the prosecutor asked, "Has he been convicted of aggravated assault?” Here, the appellant moved for a mistrial, which was denied, but the court stated to the jury:

“I think she went too far, but Gentlemen don’t consider it, don’t ask anymore questions on that line; forget her testimony about his being a criminal and just don’t consider it for any purpose.”

If appellant did not intend to place in issue his reputation as a law abiding citizen, he should have acted promptly in an effort to stop his witness. This he failed to do, and the trial judge responded to his objection when finally advised that appellant contended that his reputation was not in issue. We are unable to agree that the trial court erred in refusing to declare a mistrial because of the unanswered questions of the district attorney.

Finding no reversible error, the judgment of the trial court is affirmed.

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Bluebook (online)

246 S.W.2d 212, 157 Tex. Crim. 11, 1951 Tex. Crim. App. LEXIS 1835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hector-v-state-texcrimapp-1951.