Mcclure v. State

575 S.W.2d 564 (Tex. Crim. App. 1979)

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Nature of the Case

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Facts

D was charged with the murder of his wife. D had previously was convicted of this offense, but the judgment was reversed because of improper argument by the prosecutor. D's testimony raised the issue of voluntary manslaughter, and the court instructed the jury thereon. In support of the defensive theory that he was guilty of only this lesser included offense, D offered the testimony of Keith Crowder, Harvey Gordon, and Ronnie Davis. Each of these witnesses testified outside of the presence of the jury that he had had sexual intercourse with the deceased while she was married to D. Crowder also testified to seeing D in a restaurant while Crowder and the deceased were eating breakfast together, and that D appeared 'real nervous, shaky, upset.' D also offered the testimony of Larry Subia. Subia was allowed to testify outside the presence of the jury that the deceased, clad in a bathrobe, had answered the door of Davis' apartment at approximately 2 a. m. at a time when she was married to D. D also offered to testify and was allowed to do so only outside the presence of the jury that one Cindy Haynes had told him that the deceased had had sexual relations with Crowder and Davis. The court excluded the statement as hearsay. D was convicted and appealed.