McClendon v. State

509 S.W.2d 851, 1974 Tex. Crim. App. LEXIS 2000

• Court: Court of Criminal Appeals of Texas
• Decided: May 29, 1974
• Docket: 47376
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder.' The court assessed the punishment at fifteen years.

The appellant contends that self-defense was shown as a matter of law; a variance existed between the allegation of the name of the deceased in the indictment; a remote felony conviction was used to impeach him; and, the court erred in refusing to charge on murder without malice.

The second contention will be considered first. The indictment alleged that the appellant killed Mose Dineal by shooting him with a gun. The name of the deceased was proved by several witnesses to be Mose Dineal Howard. The wife of the deceased testified that he was also known as Mose Dineal. Appellant cites several cases and relies upon McGinnis v. State, 127 Tex.Cr.R. 621, 78 S.W.2d 978, which refers to the statement in the original Branch’s Penal Code, Section 460 (Section 480, page 468, Branch’s Ann.P.C.2d) :

“If the injured party was generally known by the name alleged it is immaterial what the true name was.” (Emphasis added)

In 1 Branch’s Ann.P.C.2d, Section 480, supra, it is written:

“The evidence is insufficient if the name of the injured party is not proved as laid either by proof that he was known or sometimes called by the name alleged or that it was in fact his name or of the same sound.”

and,

“The name by which a party is known or sometimes called is in law his name.”

In Johnson v. State, 126 Tex.Cr.R. 356, 71 S.W.2d 280, this Court held that where the proof shows that the victim was known by two names either may be alleged in the indictment. We hold that there was sufficient proof for the jury to conclude that the deceased was also known as Mose Dineal.¹

To understand the contention that self-defense was shown as a matter of law and that the evidence raised an issue of murder without malice, the testimony will be detailed.

The appellant and approximately 50 people were at a New Year’s Eve party at the L. J. Lounge in Houston. Shortly before the homicide, L. J. Prudhomme, the owner of the lounge, put Ronnie, a friend of the deceased, outside, apparently because “Ronnie was bugging the appellant and was making a commotion.” About an hour later, Mose, the deceased, came in and had a discussion with the appellant. While they were talking, appellant shot him with a .25 caliber pistol. The bullet hit him in the chest “one inch below the supersternal notch . . . that is the little V shaped indention . . . between the inner edge of the two collar bones” one inch below and one half inch to the left of the midline. The bullet went downward through the right lung and out between the fifth and sixth ribs and lodged just under the skin in the right side of the back some four inches to the right of the midline.

The deceased was unarmed.

Jimmy Williams, a witness called by the appellant, testified that Mose came into the lounge and asked appellant what was wrong with him and Ronnie. Appellant replied that nothing was wrong. Then Mose asked the question again and when appellant repeated the answer, “. then Mose told Willie to shut up and when he did that Willie stood up, and Mose put his hand in his pocket, and Willie came out with his pistol and shot him.” Williams testified that he thought Mose was going to kill Willie (the appellant).

The appellant testified that he had the pistol the night in question because he had been collecting rent and forgot he had it. He related that he was in the lounge talking to Jimmy Williams when Mose came over and touched him on the back and asked what he had done to Ronnie. He also testified that when he told Mose that he had not done anything to Ronnie that Mose cursed him. He did not see a gun but he thought Mose reached for one to kill him. He testified that he was scared and feared for his life, and that is when he reached in his pocket, got the gun and shot Mose.

We hold that the evidence does not show self-defense as a matter of law. The court charged on self-defense. The jurors are the judges of the credibility of the witnesses. They chose not to believe the appellant’s testimony on self-defense. It would have to be a rare case for self-defense to be shown as a matter of law especially where an unarmed man has been shot.

We also hold that the court did not err in refusing to charge on murder without malice. There is no testimony that the appellant was acting under the influence of sudden passion. His reason for the shooting was self-defense. No such charge was required. Jones v. State, 504 S.W.2d 906 (1974).

Prior felony, convictions against the appellant were shown. The date of the offense in the present case was December 31, 1970. The trial started October 11, 1971. The appellant was convicted in 1948 in Bastrop County for the offense of murder; his punishment was assessed at life. He was released from this conviction in 1959. He contends that since he had been released from confinement more than ten years before his trial, the proof of the prior conviction was error because of remoteness.

In most instances where a prior felony conviction has been used for impeachment, it has been held remote if the time of one’s discharge from such conviction is more than ten years. See 62 Tex.Jur.2d, Witnesses, Section 340, page 381; Penix v. State, Tex.Cr.App., 488 S.W.2d 86; Livingston v. State, Tex.Cr.App., 421 S.W.2d 108; Haney v. State, 152 Tex.Cr. 63, 211 S.W.2d 215. However, the often referred to ten-year rule of thumb is not always followed. Each case must rest upon its own circumstances. See Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476.

If more than ten years have, elapsed since the discharge date of a prior conviction and if the witness has not reformed, proof of such prior conviction may be shown for impeachment purposes.

In the present case, the facts are different from the ordinary case. The appellant testified on direct examination that he had not been convicted for a felony offense in this or any other state during the last ten years, and that he had not been in any trouble with the law during that time. On cross-examination, he testified that in 1968 in Long Beach, California, he pled guilty and was convicted for “displaying a firearm in a rude and threatening manner.” In that case he served ten days in jail and paid a fine. He also testified that during the ten-year period he had been convicted for driving while intoxicated in California.

Appellant contends that the California misdemeanor convictions were not offenses involving, moral turpitude and could not have been introduced had he not testified that he had no trouble with law enforcement officers during a ten-year period prior to the present trial.

The prior conviction for displaying a firearm in a rude and threatening manner is sufficient to show that the appellant had not reformed after he was released from his murder conviction. This conviction (as well as the driving while intoxicated conviction) was properly introduced under the facts of this case. See Crisp v. State, Tex.Cr.App., 470 S.W.2d 58. Such proof shows lack of reformation. We hold that the admission of evidence to show the prior misdemeanor convictions was not error. Under these circumstances, the court did not err in admitting proof of the prior murder conviction.

The judgment is affirmed.

1 . Where an issue as to the name of the deceased person is raised, it is proper for the court to submit it to the jury for its determination. McGinnis v. State, 78 S.W.2d 978; Johnson v. State, 71 S.W.2d 280. No such issue was requested.