DocketNumber: 43953
Citation Numbers: 473 S.W.2d 525, 1971 Tex. Crim. App. LEXIS 1805
Judges: Morrison, Onion
Filed Date: 6/29/1971
Status: Precedential
Modified Date: 11/14/2024
OPINION
The offense is murder; the punishment, twelve (12) years.
Appellant’s first ground of error is the failure of the Court to grant her application for change of venue. It appears that the motion for change of venue was filed in August, 1969; that three pre-trial hearings were set; and that one pre-trial hearing was held a few days in advance of the trial, in January, 1970. At no time prior to trial did appellant urge her motion for change of venue.
We agree with the trial court that appellant waited too long to urge her motion; but, in light of the fact that a motion for change of venue has reached a constitutional dimension, we have carefully examined the record to see if it showed that a great deal of prejudice against the appellant did, in fact, exist. The only thing in the record which sheds any light on the issue is the voir dire examination of the jury.
In light of these facts, we can only conclude that the trial court did not err in overruling appellant’s motion for change of venue.
Appellant’s second ground of error is the court’s failure to grant a mistrial
Appellant’s third ground of error is that one unnamed juror failed to reveal certain personal experiences. We find that nothing at all in the record showing which juror she refers to or what she may have failed to reveal. We cannot accept as facts allegations in appellant’s brief which are not supported by the record.
Appellant’s fourth ground of error is that the court erred in not granting an instructed verdict because the State failed to prove cause of death. The testimony from various teachers and students at the school where the killing occurred established that the deceased and the appellant were both students, that they had had a fight at lunch-time, and that the deceased had inflicted some minor injuries on the appellant. Their testimony showed that, later that afternoon, between classes, the appellant came up to the deceased and cut her arm. A teacher and a student helped to support the deceased for a moment, then the girl grabbed her stomach and fell to the floor. A teacher then came up and examined her, found a wound in her stomach and formed the impression that the girl was unconscious. Dr. Willms testified that he examined the deceased and pronounced her dead upon arrival at the hospital. He observed a stab wound in the abdomen and two lacerations across the back of the hand and no other evidence of injury
We quote from 4 Branch’s Ann.P.C., Sec. 2025, at 336 (2d Ed. 1956):
“Though the wound was not probed, the result and effect thereof may be sufficiently manifested by the fact that, coincident with its infliction, the deceased, who was up to that time in good health, immediately fell and died within a short time. Thompson v. State, 38 Crim. 335, 42 S.W. 974; Armstrong v. State, 50 Crim. 26, 96 S.W. 15; Scott v. State, 47 S.W. 531 (stating the law); Vela v. State, 62 Crim. 361, 137 S.W. 120; Hillman v. State, 126 Crim. 529, 72 S.W.2d 607; Gage v. State, 146 Crim. 305; 174 S.W.2d 491; Smith v. State, 147 Crim. 342, 180 S.W.2d 622 (stating general rules) . .
Appellant’s fifth ground of error is that the Court erred in not granting a motion for mistrial because of the testimony of two witnesses, the superintendent of schools and the sheriff, regarding a knife which was marked as State’s Exhibit #1, but never introduced into evidence. The State called two boys, both students from the school where the killing took place. The first testified that he gave the knife to the second boy. The second boy testified that he gave the knife to appellant on the afternoon that the stabbing occurred. The schools’ superintendent testified that he secured the knife from one of the teachers at the school, Mr. Davenport. (Davenport had been previously shown to have been one of the first persons to reach the deceased after she was stabbed). Finally, the sheriff testified that he got the knife from the schools’ superintendent.
The identification of the knife by the two students was clearly proper. Their testimony established that the appellant had a knife in her possession on the afternoon of the stabbing. From this testimony, the jury could draw their own conclusion that this was the murder weapon. The testimony of the superintendent and the sheriff was, under these circumstances, harmless, if it was error.
Appellant’s sixth ground of error is that the Court erred in not declaring a mistrial after the State was allowed to impeach the witness Ward. The State first called Miss Ward as a witness. Later, the appellant called her as a witness. Without deciding whose witness she was at this point, we note that the State merely questioned the witness on matters about which the appellant had questioned her. This ground of error is overruled.
Appellant next asserts that her motion for mistrial, made after the jury had retired for deliberation, should have been sustained. This motion relates to two portions of the State’s closing argument wherein the prosecutor allegedly belittled the testimony of the psychologist called by the appellant in support of her defense of insanity.
The first argument complained of is as follows:
“Mr. Wilder [Defense Attorney] critized me for not calling him Doctor. * * * I reserve the word doctor for medical doctors and practitioners of medicine and psychiatry who probably would know more about what they were talking about in this case.
“Texas has passed a bill to license psychologist and for good reasons there needs to be some governing of that particular trade or art or whatever it is.”
This argument, while generally deroga-tive of pyschologists, does not inject a new and harmful fact into the case. Also, although we do not have the argument of appellant’s counsel before us, it would appear that the above argument may have been invited. We note that the court sustained appellant’s objection and instructed the jury to disregard such argument. Com
That next complained of is as follows :
“I think you probably learned from his testimony that this type of language that he used yesterday is designed to employ only for the purpose of making his lack of knowledge and for the purpose to cover up his inability to agree upon the basic, well established common sense fundamentals.”
The Court instructed the prosecutor to reframe his statement, and he did so, indicating to the jury that he was merely asking them to use common sense in evaluating the testimony of the witness. We find no error in such argument.
There is no proof in the record to support appellant’s grounds of error, eight, nine, ten, and eleven. Nothing is presented for review.
Finding no reversible error, the judgment is affirmed.
OPINION
. Such failure takes this case out of the rule expressed in Wall v. State, Tex.Cr.App., 417 S.W.2d 59, and cases there cited.
. The affidavit filed by appellant merely recites that so great a prejudice existed against the appellant that she could not obtain a fair and impartial trial in Cherokee County.
. A motion for mistrial is not tlie proper remedy for a complaint of this nature. Appellant should have moved to quash the jury panel.