OPINION
W.C. DAVIS, Judge.
A jury convicted appellant of attempted murder; the court, finding that the enhancement paragraph of the indictment was true, assessed punishment at thirty-five years' confinement.
Appellant asserts five grounds of error: the admission into evidence of oral statements made while under arrest, the prosecutor's use of leading questions with his own witness, inquiry by the prosecutor into details of a prior conviction used for impeachment, and denial of two of appellant's requested charges.
Appellant and the complainant, Lonnie Carter, had known each other for many years. On June 1, 1978, Carter met appellant at about 10:00 a.m. at a recreation center where they both played pool. Carter asked appellant if he wanted to run some errands with him and have dinner at Carter's apartment later that day with Carter and his daughter. Appellant accepted and the two proceeded accordingly.
Carter's daughter and a fourteen-year-old cousin met appellant and Carter at the apartment. During the course of the afternoon, Carter, upset by appellant's behavior toward the cousin, remonstrated with appellant. Carter testified that appellant had talked to her as he would to an older lady, as if he wanted to date her.
Carter drove appellant back to the pool hall. The two continued to argue on the way there and after arriving. Appellant pointed his finger in Carter's face and Carter threw a beer can at him, hitting appellant and spilling some beer on him. Carter then went inside and played pool; appellant went home.
A short time later appellant returned to the pool hall with a .22 pistol in his pocket. The owner of the pool hall, Ernest Milton, testified that he saw appellant coming back and stopped him at the door. Appellant said he just wanted to talk to Carter. Appellant and Carter began arguing again and Milton told them to take the argument outside. Milton pushed appellant outside and Carter agreed to go outside and talk to appellant. The argument continued outside. After a few minutes Carter turned his back to appellant and started to walk back inside the pool hall. Appellant took out the pistol and pulled the trigger. The gun clicked but did not fire and Carter turned to reach for it. Appellant then fired three shots, the bullets hitting Carter in the head, upper chest and back. According to two witnesses, appellant walked away and then came back, walked up to the prostrate Carter, kicked him in the face, and said "This son of a bitch ain't dead yet?" Appellant then ran across the street into a park.
Officer K.W. Beck, a Dallas police officer, testified that, while driving on Oakland Street, he heard a shot and, looking in the direction of the sound, saw two men facing each other. One, whom Beck identified as appellant, had a gun; the other was standing, but holding on to a post. Beck saw appellant fire two more shots and walk away, then walk back and kick the fallen man in the face, then run into the park.
Beck left his car and chased appellant. Beck had his gun drawn and identified himself as a police officer. Appellant looked at him, threw the gun away, and raised his hands. Appellant asked Beck what he wanted him to do. Beck told him to lie on
Appellant's version of the shooting is a little different. He claims that Carter started to walk away, spun back toward appellant and reached at him. Appellant claims that he backed up, tripped and almost fell on the ground. At that point, he says, Carter was right on top of him, and he then pulled and fired the gun because he was afraid he would be attacked by Carter's friends and because he wanted to get Carter off of him. Appellant contends that the trial court erred in admitting the statements he made to Officer Beck.
Appellant contends that these statements were made while under arrest and in custody and should have been suppressed. Art. 38.22, Sec. 5, V.A.C.C.P. states:
Appellant's statements are admissible in either of two ways: first, the statements were voluntary statements, made while in custody but not in response to interrogation; Sanchez v. State, 589 S.W.2d 422 (Tex.Cr.App.1979); Earnhart v. State, 582 S.W.2d 444 (Tex.Cr.App.1979); second, the statements fit the res gestae exception of Art. 38.22, Sec. 5. Appellant's statement, made as he was fleeing the scene and was surprised by Beck minutes after the shooting, clearly qualifies as a res gestae statement. Gordon v. State, 608 S.W.2d 638 (Tex.Cr.App.1980); Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979). The court properly admitted the statement. The ground of error is overruled.
Appellant next complains that the prosecutor used leading questions during the direct examination of a witness. Ernest Milton testified on direct examination that Carter had turned "kind of sideways" to go back into the pool hall when appellant pulled the gun and tried to fire, but the gun clicked and did not fire. He said that after that click Carter turned and tried to grab the gun and appellant shot him three times. On cross-examination Milton testified to essentially the same facts when the defense counsel sought to clarify his testimony:
On redirect the testimony of which appellant now complains was the following:
We overrule appellant's ground of error for several reasons. First, the objection was made only after several questions and answers now complained of were already given and unobjected to. An objection must be timely, i.e., at the earliest opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); second, appellant never secured a ruling on his objection to the leading—an adverse ruling is necessary to preserve error; Bryant v. State, 570 S.W.2d 921 (Tex.Cr.App.1978); finally, the redirect had no material effect on the witness' prior testimony. Milton remained quite consistent in his testimony. Appellant's claim that the questions supplied the witness with a false memory of critical facts is without support in the record.
Appellant acknowledges that the use or prohibition of leading questions rests in the discretion of the court. Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App. 1973); Ballew v. State, 452 S.W.2d 460 (Tex.Cr.App.1970). When the court allows a confusing or incorrect impression to be clarified by the use of leading questions reversible error exists only if appellant was unduly prejudiced by the questions. Ballew, supra. Given the consistency of the witness' testimony, we see no harm to appellant and no abuse of the court's discretion in allowing the leading questions.
The ground of error is overruled.
Appellant contends that the trial court erred in allowing the prosecutor to inquire into the details of a prior conviction used for impeachment. Appellant testified on direct examination that he had been previously convicted of assault with intent to commit murder and that he was at that time made fully aware of the consequences of that type of action. On cross-examination the questioning continued:
Appellant is correct in asserting that the State is not permitted to bring before the jury the details of an offense which resulted in a prior conviction, the existence of which is admitted against the accused. Murphy v. State, 587 S.W.2d 718 (Tex.Cr.App.1979). The fact of conviction was admissible in this case to impeach appellant's testimony, Art. 38.29, V.A.C.C.P. We do not agree that the prosecutor inquired into details of the offense underlying that conviction. Several times the prosecutor simply repeated that appellant had been convicted of assault with intent to commit murder, which crime was the same as attempted murder, as it is called today. He did not inquire into details of the offense.
The ground of error is overruled.
In his fourth ground of error appellant contends that the court erred in refusing his requested charge that:
The court charged broadly on self-defense under the statutory language on V.T. P.C., Secs. 9.31 and 9.32, and included instructions on actual and apparent apprehension of danger. The court also included an instruction applying the law of self-defense
The ground of error is overruled.
Appellant contends finally that the court erred in refusing to include a charge to the jury on the offense of attempted voluntary manslaughter. Two established rules apply to charges on the offense of voluntary manslaughter. First, an instruction on manslaughter is properly refused where there is no evidence whatsoever of adequate cause. McCartney v. State, 542 S.W.2d 156 (Tex.Cr.App.1976). Second, in Hobson v. State, 644 S.W.2d 473 (Tex.Cr. App.1983) we quoted from Moore v. State, 574 S.W.2d 122, 124 (Tex.Cr.App.1978) which said:
Voluntary manslaughter
Appellant does not specify what evidence he thinks raises "sudden passion" and "adequate cause."
The trial court did not err in refusing appellant's requested charge on attempted voluntary manslaughter. See Hobson, supra; Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979); Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977); McCartney, supra.
Appellant contends in a pro-se brief that he pled "not true" to the enhancement paragraph in the indictment and that the prior conviction alleged was a void one. The record reflects very clearly that appellant pled "true" to the enhancement allegation. This ground of error is overruled.
The judgment is affirmed.
TEAGUE and MILLER, JJ., dissent.
CLINTON, J., not participating.
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