Adams v. State, 48979

• Decision Date: 09 October 1974
• Docket Number: No. 48979,48979
• Parties: Joe Lloyd ADAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 262

514 S.W.2d 262

Joe Lloyd ADAMS, Appellant, v. The STATE of Texas, Appellee.

No. 48979.

Court of Criminal Appeals of Texas.

Oct. 9, 1974.

Alfred Thomas, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and John Pizzitola, Asst. Dist. Attys., Houston, and Jim D. Vollers, State Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The appellant was convicted for the offense of rape and sentenced to twenty-five years' imprisonment. He appeals, asserting that the State should not have been allowed to bolster the testimony of the prosecutrix, and that the trial judge erred in not granting a mistrial or allowing appellant to make a bill of exception when appellant's trial counsel alleged that two jury members had seen appellant in handcuffs being transported to the courtroom.

The prosecutrix, seventeen years old at the trial and fifteen at the time of the rape, testified she was pulled into a car by four men she had never before seen, driven behind a church, and raped and made to commit oral sodomy with each of them. Appellant was indicted as one of four men accused of the offense and each was granted separate trial. The prosecutrix testified that she could positively identify the defendant as one of the four involved. Her testimony was unshaken on cross-examination.

Appellant called Mrs. Paula Fisher, the court reporter at appellant's habeas corpus hearing on March 28, 1972, who read excerpts from prosecutrix's testimony there. At that hearing, the prosecutrix had said she was 'not sure' she could identify the appellant as one of the four who had raped her.

The State in rebuttal called Officer Zeringue of the Houston Police Department, who said that upon appellant's arrest the officer had a picture taken of appellant and showed the picture with five others of men of similar physical types to prosecutrix on December 21, 1971. She had then positively stated that the picture of appellant was a picture of one of the four men who had raped her.

When the officer was asked whether prosecutrix had identified any of the six pictures, appellant's counsel objected in very general terms, then that '(t)his did not take place in the presence of the Defendant, and it is hearsay testimony,' and to 'the answer given and to the question and ask for a mistrial at this time,' all of which were overruled. When Officer Zeringue was asked whether the prosecutrix's statement was included in his report, counsel then objected to 'the State attempting to bolster his own witness through some statement that might have been made in offense report.' There was no objection made to the officer's recounting of the prosecutrix identifying the picture as bolstering.

Appellant contends, relying upon Lyons v. State, 388 S.W.2d 950 (Tex.Cr App.1965), that the State cannot be allowed to have other witnesses bolster the unimpeached testimony of a complaining witness identifying the defendant as her assailant. Jackson v. State, 507 S.W.2d 231 (Tex.Cr.App.1974). The State may not bolster simply because an unimpeached witness may be disbelieved. Brown v. State, 403 S.W.2d 411 (Tex.Cr.App.1966). A witness may not be bolstered in his identification merely because the defendant testifies to an alibi. Lyons v. State, supra. Attempted impeachment by a vigorous cross-examination is similarly insufficient to allow bolstering where the witness' testimony is unwavering. Acker v. State, 421 S.W.2d 398 (Tex.Cr.App.1967). A witness must be placed in the position of having testified differently from that that she had previously stated. Acker v. State, supra.

In the case at bar, depsite the probable inadequacy of appellant's objection to bringing the asserted error to the attention of the trial court, Montemayor v. State, 456 S.W.2d 126 (Tex.Cr.App.1970), the bolstering of prosecutrix's testimony with Officer Zeringue's testimony is...