Mahaffey v. State

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

On rehearing appellant contends that, “because of the threats made to the appellant by the deceased immediately before the fatal shot was fired, the jury was entitled to know about the previous acts of misconduct and violence on deceased’s part in order to determine who was the aggressor * * She relies upon our decisions in Lewis v. State, Tex.Cr.App., 463 S.W.2d 186 , and in Dempsey v. State, 159 Tex.Cr.R. 602 , 266 S.W.2d 875 , to support her contention.

A careful analysis of these decisions demonstrates that appellant’s reliance on the above cited cases is misplaced.

In Dempsey v. State, supra, the defendant was convicted of murder. At his trial, he pled self-defense and attempted to introduce evidence of previous acts of violence by deceased. This court held that the exclusion of such evidence by the trial court constituted reversible error. The decision in Dempsey v. State, supra, delineates the test for determining under what circumstances evidence of the deceased’s violent character is admissible. First, before any evidence of deceased’s character for violence becomes admissible, there must be evidence of some act of aggression by the deceased which an inquiry into his character would tend to explain. Second, the court promulgated two rules for determining the extent of the inquiry into character, delineating each according to the type of issues involved in the case:

(1) “If offered for the purpose of showing the reasonableness of defendant’s claim of apprehension of danger, it must further appear that the acts of violence or misconduct were known to the defendant at the time of the homicide.

(2) “But if offered for the purpose of showing that the deceased was in fact the aggressor [not that the defendant thought the deceased was making or about to make an attack] the witness must know but it need not be shown that appellant had knowledge of the acts of violence of the deceased at the time of the homicide.’’

Both defendant’s state of mind at the time of the event in question and the identity of the aggressor [whether deceased or defendant] were in issue, and this court held that evidence on both points was admissible.

The evidence excluded by the trial court in Lewis v. State, supra, dealt solely with the issue of determining the aggressor. The state’s witness testified that she had observed the defendant strike the deceased with a knife during a quarrel between the *809 two. She had not seen the deceased attempt to strike the defendant. The defendant contended that the deceased had hit her with his fist, whereupon she stabbed him in self-defense. The issue to be resolved at the trial was whether the deceased or the defendant was the aggressor. Other than the defendant’s uncorroborated statement, there was no evidence on this point. We held that the circumstances of that case placed it squarely within the second rule of the Dempsey test and that the excluded evidence was therefore admissible.

In the instant case, the fact that the deceased had attempted to strike the appellant with his hand was not in dispute. Three defense witnesses corroborated appellant’s story on this point, and the state’s witness testified that he had his back to the pair for a few moments just preceding the firing of the shot. That the deceased was the aggressor is therefore not in issue. What is in issue is whether, at the time of the shooting, the deceased’s actions had placed appellant in such fear of her life or of sustaining serious bodily injury that the use of a deadly form to prevent the blow was justified. Art. 1258, V.A.P.C.

The first rule of Dempsey is therefore applicable; and under that rule, evidence of deceased’s violent character which is not known by the defendant at the time of the transaction is not admissbile. The testimony which the trial court excluded in the instant case concerned matters which were unknown to appellant. The trial court’s exclusion of such testimony was proper. Dempsey v. State, supra; West v. State, 154 Tex.Cr.R. 502 , 229 S.W.2d 623 .

To now sustain appellant’s contention would be to destroy the distinction made in Dempsey v. State, supra. We are not prepared to reach such a result. The reputation or character of a deceased is not, in the usual case, a proper issue in a murder trial. The exception to the general rule applies only in a case where the defendant is claiming justifiable homicide under Art. 1258, V.A.P.C. Even in a ca'se of this type, we limit inquiry into this area to that aspect of the deceased’s character which is legally relevant to the accused’s defense. To hold otherwise would be to find our courts embroiled in determining whether the deceased was the type of person who deserved being killed. Such a determination is not within the province of our courts and is certainly not in accord with the laws of this state.

For the reasons stated, appellant’s motion for rehearing is overruled.