Vanwright v. State

454 S.W.2d 406, 1970 Tex. Crim. App. LEXIS 1404

• Court: Court of Criminal Appeals of Texas
• Decided: January 7, 1970
• Docket: 42578
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

Appellant’s first ground of error is that the court committed fundamental error in failing to arraign the appellant as provided for in Art. 26.01, Vernon’s Ann. C.C.P.

Art. 44.24 V.A.C.C.P. provides in part that this court shall presume that venue was proved in the court below and that the defendant was arraigned, “ * * * unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record.”

In construing this portion of the prior statute (Art. 847 C.C.P., 1925) it has been repeatedly held that this court will presume that venue was proved where no issue as to venue was raised prior to the filing of the motion for new trial. Harp v. State, Tex.Cr.App., 383 S.W.2d 176; Thompson v. State, 72 Tex.Cr.R. 6, 160 S.W. 685; Tullos v. State, 99 Tex.Cr.R. 551, 270 S.W. 1021; Lawrence v. State, 117 Tex.Cr.R. 228, 36 S.W.2d 1018; Doyle v. State, 168 Tex.Cr.R. 458, 329 S.W.2d 286; Baker v. State, 79 Tex.Cr.R. 510, 187 S.W. 949; Thompson v. State, Tex.Cr.App., 393 S.W.2d 922.

Davis v. State, 70 Tex.Cr.R. 563, 158 S.W. 283, holds that where the judgment recited that a plea of not guilty was entered by the defendant, and he made no objection that he had not been called on to plead in the trial court until he raised the point on a motion for new trial, after verdict, his failure to plead, if in fact he did not do so, was waived.

We see no reason why the same rule should not apply where the question of whether the defendant tried on his plea of not guilty had been arraigned was raised for the first time on motion for new trial after verdict.

Article 26.02 V.A.C.C.P. provides:

“An arraignment takes place for the purpose of fixing his identity and hearing his plea.”

In Eckels v. State, 153 Tex.Cr.R. 402, 220 S.W.2d 175, this court said:

“If appellant knew that he was not arraigned and did not want to waive arraignment, he should have raised the question before the conclusion of the evidence and given the trial court an opportunity to have him arraigned.”

The ground of error is overruled.

Ground of error No. 2 complains that the trial court committed reversible error in refusing to allow the defendant to testify concerning his prior trouble with the deceased and prior threats and prior acts of violence against him made by the deceased, all of which were circumstances going to show the condition of the mind of the accused at the time of the homicide, all in violation of Art. 1257a Vernon’s Ann.P. C.

This ground of error relates to a number of questions, some of which were answered before any objection was made and some over the objection that the question was not tied down as to time and place.

The incidents referred to in most of the questions occurred some 8 years prior to the killing. No continuous course of ill treatment was shown.

Assuming that the ground of error complies with Art. 40.09(9) V.A.C.C.P., which requires that the brief “shall set forth separately each ground of error * * *,” the previous acts and difficulties between appellant and the deceased who had since been living together as common law husband and wife, with no evidence of misconduct, quarrels, threats or violent disposition for eight years, were too remote and under the prior decisions of this court were properly excluded. Davis v. State, 65 Tex.Cr.R. 271, 143 S.W. 1161; Williams v. State, 67 Tex.Cr.R. 590, 150 S.W. 185; Trammell v. State, 145 Tex.Cr.R. 224, 167 S.W.2d 171.

We note in this connection that the enactment of Art. 1257a V.A.P.C. did not extend the rules of evidence. Childers v. State, 150 Tex.Cr.R. 453, 202 S.W.2d 930; Wiggins v. State, 115 Tex.Cr.R. 434, 27 S.W.2d 236.

The same rule of remoteness applies to the exclusion of testimony of the witness Esther Jones as to prior difficulties between appellant and the deceased in the year 1960.

Ground of error No. 4 complains that the court erred in allowing the District Attorney to read, at the punishment hearing, the record of misdemeanor convictions which were not in Courts of Record as well as arrests which did not result in convictions, and hearsay statements as to the details involved in the alleged arrests.

Assuming that the ground of error complies with Art. 40.09(9), supra,- in the absence of any objections we find no reversible error reflected. We note further that appellant agreed that the entire list from the record relating to the misdemeanors which the state offered in evidence be read if any part was.

The remaining ground of error relates to the failure of the court to charge on self defense.

Appellant’s defense was accident. We find no evidence in the record which would raise the issue that appellant shot the deceased in defending himself against an unlawful attack, real or apparent, giving rise to apprehension of losing life or suffering serious bodily injury.

We further note that the objections to the charge and special requested charges are not shown to have been presented before the court’s charge was read to the jury, as required by statute. Arts. 36.14 and 36.15 V.A.C.C.P.

The judgment is affirmed.