Orozco v. State , 164 Tex. Crim. 630 ( 1957 )

MORRISON, Presiding Judge.

The offense is murder, the punishment, 20 years.

Omitting the formal parts, appellant’s confession gives this version of the homicide:

“About six months ago three Mexican boys jumped on my brother, Mauricio, and beat him up about some girl' that he was going with. This happened in West Dallas. My brother told me that he would know these men, if he saw them again, but he didn’t know their names. Tonight about 10:30 P.M. my brother, Mauricio and I were in the White Kitchen Cafe, 2114 N. Field St., drinking some beer when my brother got up and went home and got his gun. When he drove up in front of the White Kitchen I went out to his car and he told me that one of the men who beat him up was sitting at the bar inside the White Kitchen. He pointed the man out to me and I grabbed his gun out of the front seat of my brother’s car and went into the cafe. I pointed the pistol at this man and told him to come outside. This man ran over by the music box and I shot at him two times, my pistol jammed and this man knocked the gun out of my hand and it fell on the floor. One of the men that was with the man that I had shot picked up the gun and gave it back to me. I went outside and got my .22 cal. rifle out of the trunk on my car and was going back inside, but this man that I had shot ran off. He went toward McKinney ave. After this was over I gave my brother back his pistol and went home. The P. 38 pistol that my brother gave to the Officers is the gun that I shot the man with.”

While testifying in his own behalf, the appellant stated that before he fired the first shot the deceased “waved or motioned at me with a bottle of beer * * * like he was going to throw the bottle,” and hit him over the head with a stool before he fired the second shot.

The jury rejected the appellant’s plea of self defense, and the facts amply support their verdict.

In his brief, appellant advances two grounds for reversal.

He contends that the trial court erred in permitting the deceased’s widow to testify as to the number and ages of her children.

We find practically the same evidence admitted without objection from the witness Tony Lopez, who preceded deceased’s widow to the stand. Such witness testified that at the time of the homicide the deceased resided with his wife and three children and that shortly before he was killed the deceased had carried a baby’s bottle to the house where he had left his wife and children. It was shown by other testimony, without objection, that the deceased was 18 years of age at the time of his death and that his wife was 25.

It has long been the rule that the admission of improper evidence does not constitute reversible error if the same facts were proved by evidence which was not objected to. 4 Texas Juris., Sec. 414, p. 587; Moseley v. State, 158 Texas Cr. Rep. 578, 258 S.W. 2d 331; Texas Dig., Cr. Law 1169(2).

He next complains that the appellant was improperly cross-examined about a prior fine and jail sentence assessed against him in Phoenix, Arizona. On direct examination by his own counsel, the appellant was asked, “Have you ever been convicted of a felony or a misdemeanor or paid a fine or anything of that nature?” He answered in the negative.

In Lampkin v. State, 47 Texas Cr. Rep. 625, 85 S.W. 803; Kemp v. State, 157 Texas Cr. Rep. 158, 247 S.W. 2d 398; and Eloms v. State, 159 Texas Cr. Rep. 471, 264 S.W. 2d 725, this court held adversely to the appellant’s contention here asserted. In the last case, we said:

“Prudence favors a showing by the accused that he is eligible under the suspended sentence law, enjoys a good reputation as a law abiding person, and no more. If he goes further and makes blanket statements about exemplary conduct, then the state may refute them.”

So, likewise, is the holding of the Supreme Court of the United States in the relatively recent case of Walder v. U. S., 74 S. Ct. 354, 347 U. S. 62, 98 L. ed. 503.

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