Richardson v. State

OPINION

HILL, Justice.

William Lynn Richardson appeals from his conviction by a jury of the murder of Judith Tipton, upon his plea of not guilty. The jury assessed his punishment at 25 years in the Texas Department of Corrections. He presents five grounds of error.

We affirm.

In ground of error number one, Richardson asserts that the trial court erred by not limiting the consideration of certain police officers’ testimony to purposes of impeachment only.

The State presented evidence showing that the deceased, Judith Tipton, was shot by a short, dark-haired stranger in a bar, after she refused a command to leave the bar with him, and that Richardson was that man. The evidence included Richardson’s written statement admitting that he had shot Judith Tipton. Richardson testified that Ernest Cheek had shot the victim with Cheek’s pistol. In rebuttal, the State presented the testimony of Detectives Kenneth West and D.C. Smith of the Hurst Police Department, who testified that Richardson had never told them, during their interviews with him while taking his written statement, that Ernest Cheek had shot Judith Tipton and that Richardson had acknowledged ownership of the gun.

As an objection to the court’s charge, Richardson requested a charge limiting the jury’s consideration of the officers’ rebuttal testimony solely to the consideration of Richardson’s credibility. We see no basis for the charge that Richardson requests. He relies on the cases of Henley v. State, 387 S.W.2d 877, 880 (Tex.Crim.App.1964) (opinion on rehearing); Hall v. State, 164 Tex.Crim.R. 142, 297 S.W.2d 685 (1957); and Carroll v. State, 143 Tex.Crim.R. 269, 158 S.W.2d 532 (1942). All of these cases relate to the requirement of limiting instructions when the State has impeached its own witness. None of these-cases are applicable here since Richardson was not a State’s witness. We overrule ground of error number one.

In grounds of error numbers three and four, Richardson urges that the evidence is insufficient to establish that he knowingly or intentionally caused the death of Judith Tipton. The pertinent parts of Richardson’s indictment read as follows:

William Lynn Richardson ... on or about the 4th day of June 1984, did then and there intentionally and knowingly cause the death of an individual, Judith Tipton, by shooting her with a firearm, PARAGRAPH TWO: And it is further presented in and to said court that the said William Lynn Richardson in the County of Tarrant and State aforesaid on or about the 4th day of June, 1984, did then and there intentionally with the intent to cause serious bodily injury to Judith Tipton, commit an act clearly dangerous to human life, namely, shoot her with a firearm, which caused the death of Judith Tipton, ...

In the court’s charge to the jury they were authorized to convict Richardson under either paragraph of the indictment. The jury found that he was guilty of murder as charged in the indictment. Richardson does not present any ground of error attacking the sufficiency of the evidence to convict him under paragraph two of the indictment. Since there is no attack on the sufficiency of the evidence under paragraph two of the indictment, this Court need not consider whether the evidence is also sufficient to prove the alternative theory. See Vasquez v. State, 665 S.W.2d 484, 487 (Tex.Crim.App.1984). We overrule grounds of error numbers three and four.

In grounds of error numbers two and five, Richardson complains that the trial court erred in its charge in that it is impossible to determine whether the jury found Richardson guilty under the first or second paragraph of the indictment. He also urges that the charge is a comment on the evidence.

It is proper for an indictment to allege different ways of committing the offense in the conjunctive and for the jury to be charged disjunctively. Id. at 486.

No error in such a charge is preserved in the absence of an objection to the charge on insufficiency of the evidence or a motion to force the State to elect. Id. at 486-87. Richardson made no such objection or motion. We find there to be no error in the charge. We overrule grounds of error numbers two and five.

The judgment is affirmed.