Leal v. State , 106 Tex. Crim. 68 ( 1927 )

Conviction in Criminal District Court of Cameron County of murder, punishment five years in the penitentiary.

We find it difficult to appraise many of appellant's complaints as set out in his brief because based on and referring to assignments of error which do not even refer us to bills of exception supporting same, which in any event would compel us to try to find out, by an examination of said so-called assignments of error, what parts of the record same referred to. It is to be regretted that our oft-repeated statement that on appeals to this court we consider only the bills of exception in matters of procedure, should be overlooked. Linder v. State, 94 Tex.Crim. Rep.; Whitfield v. State, 283 S.W. 857. We have examined all of appellant's bills of exception appearing in the record.

Bills Nos. 1 and 2 complain of a question and answer. The answer is omitted in each instance. Nugent v. State,273 S.W. 598. Bill No. 3 sets out a question and answer without a particle of showing as to the surroundings or antecedent facts. We are entirely without information therefrom by which we might determine the complaint. Bill No. 4 sets up that awitness had been advised of certain matters, and the objection made thereto as same appears in the bill, is to a statement that the defendant had been advised of a certain matter. The objection does not correspond with the statement and presents no error. Bill No. 5 apprises us that the witness Faulk had written out the confession of appellant, had read it to him, and had caused appellant to read it so as to make sure he understood it. We think complaint of this procedure in no way supports the proposition that this shows that the confession was not voluntary. An objection to the introduction of a written confession upon the ground that same is not dated, containing nothing within itself showing when it was made, presents nothing for review. We know of no reason why the state might not show otherwise than in the written confession, when same was taken.

Bill No. 7 complains because a witness was not permitted to state his understanding of a matter about which he could evidently have no knowledge except that obtained by hearsay. The objection was properly sustained. Bill No. 8 sets out the various objections made to the admission of appellant's confession, but wholly fails to set out any facts supporting any one of the objections thus made.

Bill No. 9 complains of the fact that appellant was asked while a witness on the stand herein in reference to an apparent contradiction in one instance between two confessions made by him, both of which were in evidence, one put before the jury by the state and the other by the accused. We see no violation of any rule in the asking of such question. After appellant left the witness stand he was recalled by the state and asked in reference to that part of his second confession, which was at variance with his first, and in that connection was asked if he had not made the statement that his reason for changing that part of the confession was because he did not want to involve his family in trouble. We perceive no legitimate objection to such procedure. Two bills complain of the statements by witness Faulk that on the morning he first saw appellant he had the appearance of having just been awakened. The statement appears a shorthand rendering of the facts and would appear to be more objections to the weight than to the admissibility of the testimony.

Appellant's objection as appears in bill No. 13, was to a lengthy statement of the witness Faulk. The statement covers practically a page. Much of the statement set out was clearly admissible, and some was of doubtful propriety if it be given the construction placed upon it by appellant. Since the objection was made in solido, we are of opinion no error appears in the overruling of same. Payton v. State, 35 Tex. Crim. 508; Vaughn v. State, 280 S.W. 772; Bing v. State,280 S.W. 827. Appellant had injected into the case the issue that he did not voluntarily make the alleged confession. He claimed that when he signed same he had been kept from sleep until he was in such condition of mind as that he could not make a voluntary confession. Evidence as to the appearance, acts and conduct of appellant at the time each of said confessions was made and between the time of taking same, which shed light on the issue thus raised, became admissible. What we have just said applies to bills of exception Nos. 13, 14, 15, 16 and 19.

In bill of exceptions No. 17 appellant sets out that Mr. Faulk was asked by appellant's counsel if his conversation with appellant was not in Spanish, and that upon receiving an affirmative answer, appellant moved that all testimony whatever of such conversations be stricken out because same were had through an interpreter. We see no merit in such motion.

The record shows that appellant introduced testimony showing that he had a .38-caliber pistol, and that his grandmother told him she had taken it out of his trunk. This being true, we think the testimony complained of in bill of exceptions No. 18, which was in effect that the officers took appellant to his grandmother's house after his arrest to get the pistol he had left with her, and that he asked her for this pistol and she said it was not there, and that he insisted that she knew where it was because he put it in his trunk and if same was not there she had hid it — would appear entirely harmless as affecting any issue in this case. Appellant was given the lowest penalty for the offense charged.

There is a bill of exceptions complaining of the sufficiency of the testimony. We are unable to agree that the testimony is not enough to support the judgment. Appellant, deceased and others were shown to have been engaged in a gambling game. Deceased had a large sum of money. After the game broke up and deceased had left the place, it was shown that appellant came to him and told him that another Mexican, shown by this record to be charged with this offense, wanted to see him, deceased, back about the place where the game had been in progress. Appellant left, going back in that direction. Deceased also presently followed and was not again seen alive. His body was found dead from gunshot wounds. Appellant made a confession, admitting that he and the other Mexican above referred to killed deceased by shooting him with a pistol, and that they took his money and divided it.

Finding no error in the record, the judgment will be affirmed.

Affirmed.