# Hurt v. State > Court of Criminal Appeals of Texas · May 31, 1972 · 480 S.W.2d 747 URL: https://www.frixlaw.com/law-library/cases/9776396 ## Case - **Full name:** Hubert HURT, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** May 31, 1972 - **Citations:** 480 S.W.2d 747; 1972 Tex. Crim. App. LEXIS 2204 - **Precedential status:** Published - **Opinion:** Dissent by Douglas - **Judges:** Roberts, Morrison, Douglas - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776396 ## Opinion text DOUGLAS, Judge (dissenting). In Tulia, on December 1, 1969, about 11:00 p. m., Jay Washington, who resided within twenty-five or thirty feet from the garage apartment of Tiny Lee Deal, heard a noise like someone was beating on a door, a girl scream and then a gunshot. He called the police. John Elliff and Jerry Shannon, both of the Tulia Police Department, arrived. While underneath the apartment, they heard bumps and thuds and moans. When they got to the door, Officer Elliff could hear moans and something that sounded to him like somebody “hitting a wet sack on a table.” He then shined a light into the darkened apartment and saw Hurt, the appellant, with a blackjack in: his hand, on his knees and bending over Miss Deal. Hurt saw the officers and started toward them. On the way he tried to get a pistol out of a front pocket, but the officers subdued him and took a blackjack and a .38 caliber H & R revolver from him. The pistol contained three live and one spent shell. When the officers entered, Miss Deal was on her back, her panties were pulled down around her ankles. Hurt was bending over her with his trousers unbuttoned or unzipped. Miss Deal stated, “He’s going to kill and rape me.” According to Officer Shannon the whole apartment was “red with blood.” There was blood on the ceiling. Miss Deal testified that she was twenty-four years of age. On the night in question the telephone rang. She answered, but all she could hear was breathing and the caller would not answer. Later that *751 evening, she heard someone coming up the steps apparently two or three at a time. She attempted to call her landlady and by the time she had dialed two or three numbers Hurt had broken through the locked screen and locked door both. He asked where his wife and baby were and told Miss Deal that she was going with him to find them. She refused. He tried to make her leave, he started fighting and she screamed. He told her to shut up or he would shoot her. She then heard a gun go off and felt a hot burning on the back of her head. The next thing that she remembered she was on the floor and he was beating her. She felt blows on the back of her head and on her hands. She thought he was beating her with a “hoe file.” After part of the beating, he turned her over on her back, pulled up her dress and her panties down to her ankles. He got up, turned off the light, got on top and started choking her until she was almost unconscious. The officers arrived and she remembered being placed on a stretcher and taken to the hospital where she remained for some five days. She had injuries all over her head and skin graft was required. Two of her fingers were broken and a knuckle of a finger was knocked out of place. Dr. James J. Scarborough testified that he treated Miss Deal on the night in question. His examination revealed scalp wounds which covered the entire back side of her head. “The scalp was actually cut into ribbons, just, I don’t know how many different cuts were there. Many, many, different cuts so that the scalp was kind of like a puzzle. It actually required a lot of time to piece the right pieces together to where it covered and fit properly.” She had four fractures on her right hand. Hurt testified that he was thirty-three years of age and that he and his wife went to the church that Miss Deal attended. His testimony was that he had been drinking on the night in question and had gone to the apartment of Miss Deal in an attempt to locate his wife and he had no intention to rape Miss Deal. He further testified that after she started screaming, he did not know what happened until the officers slapped him and he then came back to his senses. When he went into the apartment Miss Deal was talking over the telephone and “I didn’t know whether she was calling the law — .” At this point he was interrupted by his attorney. Also on direct examination he testified that he was convicted for passing a forged instrument in 1955 1 in Littlefield on a plea of guilty. He also testified that he had been convicted for forgery in Brownfield. On cross-examination he admitted that in 1961 he had been convicted in Quanah for passing a worthless check and had paid a fine and that in July of 1961 he was found guilty in Littlefield and assessed two years for forgery. He also admitted that in 1969 he had been convicted for passing a forged instrument in Lamb County and was assessed a term of five years. 2 He testified that he did not remember shooting the gun and wondered how the blood got on his trousers. He also could not recall other blackout spells, but he may have had them and then testified that he had not had other blackout spells. On redirect he testified that along with the whiskey and beer that he had drunk he had taken Darvon pills the day in question. At the penalty stage of the trial, several witnesses testified that appellant’s reputation was bad. *752 Mrs. Mary Bublis, called by the appellant, testified that she was a psychiatrist and that she had examined the appellant twice after the ■ date of the offense and that she had a very comprehensive interview with him. She concluded that he was not mentally ill. She was asked a hypothetical question based upon the answers Hurt had given during the guilt stage of the trial. She answered that, based on the facts that Hurt’s counsel had given her (in the question) “plus the history that I know of Mr. Hurt of his earlier experiences with alcohol and drugs, I would say he was out of contact with reality at that time.” She testified that she thought he was in a blind rage and was psychotic at the time and had an organic type of amnesia. She also testified that the mental status exam did not produce the kind of sadistic picture of a person who ordinarily would do such acts without the' factors of alcohol and the drug. On cross-examination, Dr. Bublis was asked, and she answered as follows: “Q. (District Attorney) Doctor, you mentioned this man’s former experience with alcohol and drugs. What is his former experience? “A. Well, from the history that I obtained from Mr. Hurt, I gathered that he has a long year’s of episodic excessive use of alcohol, and at times convinced with various synthetic analgesics in which Darvon is one of them.” With this background, the controlling issue in the case will be discussed. Was reversible error committed when the court permitted the district attorney to ask Dr. Bublis if she had heard about other convictions and charges against the appellant? Outside the presence of the jury Dr. Bublis testified that Hurt had told her about other blackouts. (Hurt’s testimony at the guilt stage of the trial was that he had had no other blackouts.) He also, according to her testimony, was pretty hard on women and hit them when he had been drinking. The district attorney then stated the defendant had put his character in issue and that the State should be entitled to question the doctor as to whether or not she heard or whether or not she had revealed to her at the time the examination was made, some or many of the previous offenses that had been committed by Hurt. Hurt’s counsel countered that she was not a character witness. The questions were permitted to test the basis of the opinion of the witness on what she had heard and to see if after hearing of these offenses she would have changed her opinion. Her examination in the presence of the jury showed that she had not heard that he had been convicted of the offense of theft and forgery of United States Treasury checks in 1953; she had not heard that he was charged with the offense of burglary in Kerrville in 1954; that he had been picked up for a parole violation for passing a forged United States Treasury check and assessed a term of two years. She had heard he served time in the penitentiary, but had not heard of the worthless check case in Quanah. She had not heard of a charge of forgery in Brownfield nor a conviction for passing a forged instrument in Lamb County. She had not heard that he was indicted in 1959 in Swisher County for removing mortgaged property nor for the offense in 1957 for stealing a credit card. When asked if she had heard that Hurt had been charged of aggravated assault upon Joy Hurt, she replied that he shared with her some problems involving his wife. He told her about being charged with driving while intoxicated on October 19, 1969. When asked about being charged in October, 1969, for aggravated assault upon Paula Fay Halsey, she answered that he told her about some of his previous experiences but she was not sure she knew the precise names and dates. Dr. Bublis did not believe that he told her about an as *753 sault to murder charge upon Roda Whit-worth on October 13, 1969, less than two months before the date of the present offense. Hurt’s attorney then asked: “Q. Dr. Bublis, now, after having in your storehouse of information these questions that the District Attorney asked you about what you had heard about the defendant, Hubert Hurt, does this change the opinion that you gave earlier when you told this jury that you had an opinion as to his state of mind at the time of the offense in question, and that your opinion was that he did not know, based upon reasonable medical probability that he did not know the nature and quality of his act, and that he did not know the difference between right and wrong ?” and Dr. Bublis answered: “A. This information does not change my opinion about his mental status at the time of the act.” The “have you heard” questions testing a witness’s basis for testifying that an accused has a good reputation should not be confused with the question at hand. Here the expert witness, Dr. Bublis, based her answer that appellant was psychotic at the time of the assault upon Miss Deal. The State probably should not have asked the “have you heard” questions. It would have been proper and perhaps more harmful to the appellant to have asked the doctor if Hurt had told her about being charged with assault to murder a certain woman or if he had told her about being charged with having committed aggravated assault upon his wife and another woman or if he had told her about being charged with the other offenses. At least three of the prior convictions were shown at the guilt stage of the trial. Evidence of the other prior felony convictions as far back as 1953 could have been admitted before the jury because a continued course of misconduct and convictions had been shown up until the time of the trial. These felonies, as well as the misdemeanor convictions, could have been proved directly at the penalty stage of the trial under Article 37.07, V.A.C.C.P. They were not challenged and defense counsel did not contend or offer to show that the convictions did not occur. The matters gone into that could not have been proved directly at the guilt stage of the trial were the charges for certain offenses. There were, among other things, assaults upon other women and driving while intoxicated. These made up a part of the history of the appellant and were subjects of inquiry to determine the basis of the opinion of the doctor that the appellant was psychotic at the time of the commission of the present offense. Opinion testimony of an expert witness as to the sanity or insanity of a person when based upon the personal observations of the witness rather than solely upon evidence adduced at the trial or upon a hypothetical state of facts is received upon the same principle applicable to non-experts. McCormick & Ray, Texas Law of Evidence, Section 1421, note 31, page 252 (1956). The Texas rule on the scope of cross-examination is limited only by relevancy to the issues and is not applied with the same strictness as in direct examination. Evansich v. Gulf, C. & S. F. R. Co., 61 Tex. 24 (1884); State v. Reeh, 434 S. W.2d 416 (Tex.Civ.App. 1968, writ ref’d n. r. e.); City of Dallas v. Riddle, 325 S.W.2d 955 (Tex.Civ.App. 1959, writ ref’d n. r. e.). See generally McCormick & Ray, supra, Section 600, pages 467-468. In McCormick & Ray, Section 1396, page 224, it is written: “ . . . If it has been shown that the witness had an opportunity to observe and did observe, and if his testimony in opinion-form is of such value as to be admissible, the facts upon which his *754 opinion is based are matters affecting its weight but seemingly should have nothing to do with admissibility. The grounds of his opinion may be tested by the adverse party on cross-examination.” It should be remembered that the testimony of Dr. Bublis was at the penalty stage of the trial, after the jury had already heard of much of his prior criminal record and after having determined his guilt. The brutal facts in the assault in this case warranted the jury in bringing in a verdict of forty-five years. If there were error, it is harmless. I would affirm this conviction. . He was asked if he was convicted in 1965, and lie answered 1955. He later testified that this was some six years before the trial. . The court did not permit the prosecutor to ask about a 1953 conviction for theft from the mail and forgery where he was placed on probation in El Reno, Oklahoma, and later that probation was revoked in December of 1954. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776396. Public record. Not legal advice.