Adams v. State

• Decision Date: 17 June 1982
• Docket Number: No. C14-81-243CR,C14-81-243CR
• Citation: Adams v. State, 642 S.W.2d 211 (Tex. App. 1982)
• Parties: David ADAMS, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 211

642 S.W.2d 211

David ADAMS, Appellant, v.STATE of Texas, Appellee.

No. C14-81-243CR.

Court of Appeals of Texas Houston (14th Dist.).

June 17, 1982.

Donald W. Bankston, Houston, for appellant.

Alvin Titus, Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, for appellee.

Before MILLER, MORSE and JAMES, JJ.

MILLER, Justice.

Appellant was convicted of the offense of aggravated rape, Section 21.03, Tex.Penal Code Ann.(Vernon 1974).After finding appellant had been previously convicted of a prior felony, the jury assessed punishment at life confinement in the Texas Department of Corrections and a $10,000.00 fine.We find no error in the judgment of the trial court, save the $10,000.00 fine which is not provided by Sec. 12.42(c), and we affirm as reformed herein.

Initially, appellant claims the trial court erred in failing to grant his motion for mistrial based on a prejudicial question propounded by the prosecutor.During the presentation of his case, appellant called his wife, Kay Reese Adams, to testify on his behalf.Ms. Adams testified appellant was with her part of the night in question.She further testified to appellant's dress and appearance and whether he had been drinking.(The complaining witness had previously testified as to her assailant's clothing and that he may have been intoxicated at the time of the rape.)On cross-examination, the state asked Ms. Adams the following question: "Ms. Adams, are you in the process of getting a divorce?"Appellant's counsel objected and the jury received an instruction to disregard.Appellant now maintains the instruction to disregard was ineffective to cure the error and that the impropriety of the prosecutor's comment necessitated a mistrial.

The Court of Criminal Appeals has held as a general rule that an improperly asked question can be cured or rendered harmless by either a withdrawal of the question or testimony, or by an instruction to disregard.Carrillo v. State, 591 S.W.2d 876(Tex.Cr.App.1979);Cavender v. State, 547 S.W.2d 601(Tex.Cr.App.1977);White v. State, 444 S.W.2d 921(Tex.Cr.App.1969).The exception to this general rule, as urged by appellant, is that an instruction to disregard is inadequate to cure such error when it appears the question is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.Carrillo, 591 S.W.2d at 892, Cavender, 547 S.W.2d at 603.

The court's quick action in sustaining the objection and instructing the jury to disregard the question cured all error, if any existed.A mistrial, therefore, was unnecessary and the court did not err in overruling appellant's motion to that effect.DeBolt v. State, 604 S.W.2d 164(Tex.Cr.App.1980);Carrillo, supra.The prosecutor's question, when examined on its own, appears prejudicial and improper.A complete review of the cross-examination of Ms. Adams, however, reveals a valid purpose behind the state's question.The prosecutor's subsequent cross-examination revealed that appellant and his wife were separated at the time of the offense, and that since appellant was not living with her she did not possess full knowledge of his whereabouts that evening.Therefore, because there was a valid purpose behind the state's question, there was no intent by the prosecutor to inflame the minds of the jury.While the question could have been better phrased, we do not think it amounted to error.If any error existed, it was cured by the court's instruction to disregard.Appellant's first ground of error is overruled.

Second, appellant claims the trial court erred in allowing the state to amend the enhancement portion of the indictment after appellant's conviction but prior to its presentation at the penalty stage.Prior to impanelling the jury, the enhancement paragraph of the indictment read:

Before the commission of the offense alleged above, on February 5, 1975, in CauseNo. 10928, in the 123rd District Court of Shelby County, Texas, the Defendant was convicted of the felony of Burglary and Theft.

The state's amendment deleted the words "and Theft," so the jury received an enhancement paragraph only charging a prior conviction for burglary.Appellant complains this amendment was in violation of Article 28.10 of the Texas Code of Criminal Procedure which prohibits indictment amendments as to form or substance after the beginning of trial.

We disagree.The deletion of the words "and Theft" from the enhancement paragraph did not come under the amendment prohibition of Article 28.10.The State, by abandoning one of the prior convictions in the enhancement, did not amend a material or descriptive allegation in the indictment.The Court of Criminal Appeals held in Passmore v. State, 544 S.W.2d 399(Tex.Cr.App.1976), that allegations of prior convictions in an enhancement indictment are not part of the substantive offense, but are merely guides for the court or jury in fixing final punishment in the event of a conviction.The listing of the type of offense in the enhancement paragraph is primarily important in showing a prior felony conviction.Id. at 430.In Degay v. State, 455 S.W.2d 205(Tex.Cr.App.1970), the court held there is no violation of Article 28.10 for the...