Appellant was convicted by a jury of murder with malice under Arts. 1256 and 1257, Vernon's Ann.P.C. The jury assessed his punishment at fifty years' imprisonment.
In his first ground of error, appellant complains of the trial court's refusal to allow him to perfect a bill of exception relative to the vior dire examination of one of the prospective jurors. He contends that such a ruling by the trial court prohibited him from showing the harm, if any, he suffered by not being allowed to ask certain questions of the prospective juror.
The complaint thus alleges an unreasonable restriction of the appellant's voir dire examination. We are of the opinion that error, if any, would be apparent from the transcription of the voir dire proceedings. In moving to the harmfulness of any alleged error, we deem it unnecessary to consider whether the trial court actually committed error in restricting the voir dire examination.
There are two tests for harmless error in connection with voir dire proceedings. The test for ascertaining the harmfulness of an error in denying a proper challenge for cause is to look to the exercise of a defendant's peremptory challenges. If there is no showing that he was forced to accept an objectionable juror because he had exhausted his peremptory challenges, an error in denying a challenge for cause is harmless. Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974). An error in the unreasonable restriction of a defendant's voir dire examination of the prospective jurors is quite another matter. Such examination is for the purpose of enabling counsel intelligently to exercise his peremptory challenges and a requirement that he exercise all his peremptory challenges would ordinarily make no sense. Burkette v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). The test for ascertaining harm in such cases is whether trial judge's limitation of the voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right. Burkette v. State, supra; Grizzell v. State, 164 Tex. Cr.R.362, 298 S.W.2d 816 (Tex.Cr.App.1957) (opinion on motion for rehearing); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Barrett v. State, 516 S.W.2d 181 (Tex.Cr. App.1974) (dissenting opinion). Our research has revealed no cases resulting in reversal where the limitation of the voir dire examination complained of pertained to only one juror. In the cases we have found which were reversed for this reason, the trial court has refused the asking of certain questions or otherwise acted with reference to the jury panel as a whole. Thus, counsel's inability intelligently to exercise his peremptory challenges stretched to the entire panel of veniremen. The case at bar presents a situation in which counsel's voir dire examination was limited as to one prospectively juror only. The fact, conceded during oral argument, that appellant did not exercise all his peremptory challenges, is relevant in this situation and mitigates the harmfulness of any error.
Appellant's reliance on Morris v. State, 411 S.W.2d 730 (Tex.Cr.App.1967), Vines v. State, 479 S.W.2d 322 (Tex.Cr.App. 1972), and Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973) is misplaced. Those cases related to the requirement of Art. 40.09, Sec. 4, Vernon's Ann.C.C.P. that voir dire proceedings be recorded upon request. And they held that reversal would be required if error in the voir dire proceedings was merely alleged, if a proper request that the proceedings be recorded had been denied.
Appellant's first ground of error is overruled.
In connection with appellant's remaining grounds of error, it becomes necessary to summarize the testimony surrounding the facts of the offense in question. William M. Higgins testified for the State that he was walking east on Main Street in Lubbock on February 9, 1973, the date of the offense. He stated that appellant passed him walking at a normal pace going in the opposite direction and that the deceased, Larry Jack Stevens, a plainclothes Lubbock police officer, also passed him walking slightly faster after the appellant. Higgins testified he heard someone say "Turn me loose" or "Go away" or words to that effect and he looked over his shoulder to see what was happening. He saw appellant knock the deceased to his knees and then take out a pistol and fire three quick shots at him. As Higgins ran for cover, he testified, more shots were fired and both men fell to the sidewalk wounded. Stevens was pronounced dead soon thereafter. When asked what had happened by an investigating officer, appellant replied, "It's simple. I shot him and he shot me." Two other witnesses testified that they heard one shot and then a volley of shots, but they stated that it appeared to them that appellant fired the first shot. No other witness was able to relate any conversation between appellant and the deceased.
Appellant's second and third grounds ascribe error to the trial court for his failure to charge the jury on the issues of murder without malice and self-defense. Appellant claims that these issues were raised by the evidence, entitling him to charges thereon.
Article 1257c of Vernon's Ann.Penal Code provided as follows:
The appellant did not testify. We are asked to find adequate cause for a sudden passion to arise in a man of ordinary temper on the basis of the other witness' testimony. There was some testimony suggesting that the deceased may have attempted to detain appellant and there is evidence that someone, presumably the appellant, said "Turn me loose," or words to that
Appellant's claim to a charge on self-defense is based on Art. 1223, V.A.P.C., which provided as follows:
The prerequisites to the application of this presumption were most recently stated in Stone v. State, 510 S.W.2d 612 (Tex.Cr.App. 1974), where the Court said:
Admittedly, the first two requirements stated above are satisfied under the evidence in this record. Obviously, the deceased had a gun and obviously it was used in a manner calculated to cause death. The question is whether there is evidence to show that the deceased used the weapon in an assaultive manner before he was shot by appellant. Stone v. State, supra; Johnson v. State, 501 S.W.2d 915 (Tex.Cr.App.1973).
The evidence suggested that the deceased approached the appellant with his police badge in his hand—nothing more. Those witnesses who testified to seeing a gun saw a gun only in the appellant's possession. No one saw a weapon in the deceased's hands. Witness Higgins was sure appellant fired the first three shots. Two other witnesses who thought the flurry of shots was preceded by a single shot testified that the single shot either came from appellant or came from his direction. In his brief, appellant strenuously urges that the evidence suggests that the deceased may have fired the first shot, but such contention is not borne out by the record. The possibility that the deceased fired first is very remote under these facts.
In fact, such a possibility would have to be based completely on conjecture. There was no evidence indicating the deceased fired first. An inference cannot be based upon an inference. 23 Tex.Jur.2d, Evidence, Sec. 69, and cases cited therein. Without evidence at least raising the question, appellant was not entitled to the benefits of the presumption of Art. 1223.
Finally, appellant complains of the court's failure to charge on appellant's right to resist an unlawful arrest and his right to resist an illegal restraint. He places his primary reliance on Matterson v. State, 142 Tex.Cr.R. 250, 152 S.W.2d 352 (1941) for the proposition that a defendant is entitled to such a charge when the issue of detention (or arrest) is raised by the evidence. In Matterson, however, the defendant testified in detail about the deceased's grasp on her wrist and his threats to choke her. Defendant's
Appellant's grounds of error are overruled and the judgment is affirmed.