447 S.W.2d 932 (Tex.Crim.App. 1969), 42306, Branch v. State

Docket Nº:42306.
Citation:447 S.W.2d 932
Party Name:Elmer BRANCH, Appellant, v. The STATE of Texas, Appellee.
Case Date:December 10, 1969
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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Page 932

447 S.W.2d 932 (Tex.Crim.App. 1969)

Elmer BRANCH, Appellant,

v.

The STATE of Texas, Appellee.

No. 42306.

Court of Criminal Appeals of Texas.

December 10, 1969

Page 933

J. G. Souris, Vernon, for appellant.

Bill Neal, Dist. Atty., Vernon, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is rape by force; the punishment, death.

The record reflects that the victim, a widow, lived alone some twelve miles north of Vernon and a distance of about two blocks from the home of her son. Testifying at the trial she positively identified appellant as the Negro man who, about 2 A.M., after gaining entrance into her house through a window, by force ravished and had sexual intercourse with her, and after demanding and taking money she had in her coin purse and threatening to repeat his act, finally drove away. She immediately ran to her son's home and reported the matter. She described her assailant as being a young Negro man, wearing dark trousers and tennis shoes. Her son relayed the information to the sheriff by telephone and told the sheriff that the suspect was believed to be in an automobile headed toward Vernon.

The sheriff immediately alerted all officers in the area by radio, requesting them to stop any car containing colored subjects coming into Vernon from the north. Within minutes a vehicle driven by appellant pulled into a service station on the north side of Vernon. Police officers of the City of Vernon observed that he was wearing tennis shoes and dark trousers which were unzipped, and detained him until other officers arrived.

The tennis shoes worn by appellant were compared with the footprints found near the house in which the offense was committed and they matched.

The first ground of error complains that the conviction is void because of jury misconduct in that during their deliberation one of the jurors 'quoted scripture from the Bible to other jurors.

The second ground of error complains that the court erred by failing to grant appellant's motion to subpoena certain jurors to prove the alleged jury misconduct.

We find no merit in these grounds of error, first because the allegations if proved would not constitute ground for reversal and second, because such allegations were not supported by affidavit of one in position to know what transpired in the jury room during the deliberations of the jury, hence was...

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