Banks v. State

Decision Date19 June 1974
Docket NumberNo. 48379,48379
PartiesJessie B. BANKS, Jr., Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

David L. Horton, Fort Worth, Court appointed on Appeal Only, for appellant.

Tim Curry, Dist. Atty., L. T. Wilson, Billy D. Mills and William A. Knapp, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BILL J. CORNELIUS, Commissioner.

Appellant was convicted of the offense of burglary. Punishment, enhanced by two prior convictions, was life imprisonment.

The first ground of error asserts that the trial court should have allowed appellant to impeach his own witness, Clyde Edward Stephens. The background of this complaint is that appellant, although he admitted that he was at the scene of a Mobil service station when it was burglarized, denied taking any part in the burglary and claimed that Stephens, who was his cousin, was the one who actually broke into the station. Appellant called Stephens as a witness, but he testified that appellant took him home on the evening of the offense at about 6:30 or 7:00 o'clock, and that he stayed there all night. On cross-examination Stephens denied going to the Mobil service station at all on the night of the burglary. He further testified:

'Q. Did you break into a mobil service station at 1001 North Main on November 29, 1972?

'A. No, sir, I did not.

'Q. Did this defendant--has he talked to you trying to get you to help him out in this case?

'A. We were both on the tenth floor and he used to holler down and talk to me.

'Q. Has he tried to get you to help him out in this case?

'A. He has tried; he asked me to do something.'

On redirect, the following occurred:

'BY MR. HARRIS:

'Q. State whether or not, Mr. Stephens--whether or not Mr. Banks--Jessie Banks, called down there and asked you to do something, he was asking you to tell the truth in here?

'A. Mr. Banks?

'Q. Isn't that what it was?

'MR. WILSON: I'm going to object to counsel trying to impeach his own witness.

'THE COURT: This is your own witness.

'MR. WILSON: He put him on and he vouches for his credibility.

'MR. HARRIS: Thank you, no questions.

'THE COURT: That is all, step down.'

A party may not impeach his own witness unless the witness testifies to facts injurious to that party's case and the party demonstrates that he was surprised by such testimony. Article 38.28, Vernon's Ann.C.C.P.; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708; Wall v. State, Tex.Cr.App.,417 S.W.2d 59; Smith v. State, Tex.Cr.App., 479 S.W.2d 311. It is not enough for the party to merely claim that he has been surprised. He must demonstrate that fact by the procedure outlined in Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529, by showing outside the presence of the jury his prior conversations with the witness or the prior statement of the witness. Pelton v. State, supra; Thrash v. State, 170 Tex.Cr.R. 97, 338 S.W.2d 447; Bostick v. State, Tex.Cr.App., 363 S.W.2d 474.

Even if the testimony of Stephens here could be construed as the statement of facts injurious to the defense, as distinguished from the mere failure to testify as expected, the appellant wholly failed to demonstrate surprise. Furthermore, his counsel made no complaint of the trial court's action in this regard but voluntarily adabdoned the matter, stating that he had no further questions. Under these circumstances, no error is shown. Ground of error No. 1 is overruled.

In ground of error No. 2 the appellant complains of certain remarks of the trial judge, which it is contended were so critical of appellant's counsel in the presence of the jury as to be prejudicial error. The remarks were as follows:

'MR. WILSON: Your honor, may I object to the side bar remarks that Counsel keeps making here?

'THE COURT: Okay, I will sustain the objection.

'MR. HARRIS: I apologize, Your Honor.

'THE COURT: And we don't use any kind of swagger stick, Mr. Harris, and we remain seated at Counsel's table. Put up the swagger stick and have a seat.

'MR. HARRIS: All right.'

Appellant did not object to the comments of the trial judge. He neither requested an instruction to the jury to disregard them nor moved for a mistrial.

Ordinarily counsel should not be reprimanded in the presence of the jury, but we conclude that under the circumstances here the remark did not constitute prejudicial error, especially since no objection was made thereto and no other relief was requested. Fleck v. State, Tex.Cr.App., 380 S.W.2d 621; Gaines v. State, Tex.Cr.App., 481 S.W.2d 835; Cartwright v. State, Tex.Cr.App., 426 S.W.2d 858. Ground of error No. 2 is overruled.

Appellant next complains of the action of the trial court in forcing him to close his case before he was ready to do so. When the witnesses Dees completed his testimony, the court asked appellant's counsel if he had any more witnesses. Counsel requested a recess but it was denied. He then stated to the court that he had no more witnesses ready at that time but that he refused to close because he needed additional time to secure said witnesses. The trial court refused the request for additional time, and stated that he would 'rest' for the appellant, whereupon the case was closed. The court was then recessed until 2:00 p.m. When court reconvened, the trial court stated to appellant's counsel that he had been given from 12:15 until 2:00 o'clock to 'see if you could get those other witnesses. Did you get any other witnesses?' The appellant's counsel answered: 'No, your honor, we have no more witnesses at this time.' When the court asked if the defense closed, counsel for appellant answered: 'Yes, your honor.'

It appears that the appellant was ultimately given the additional time he requested originally, but he was unable to secure the additional witnesses, and at that point he voluntarily closed his case. There is...

To continue reading

Request your trial
102 cases
  • Geesa v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 6, 1991
    ...applied the "some evidence" rule in gauging sufficiency of evidence to sustain a judgment of conviction. See, e.g., Banks v. State, 510 S.W.2d 592, 595 (Tex.Cr.App.1974) (upon viewing evidence in light most favorable to verdict, it will be sustained "if there is any evidence which, if belie......
  • Clewis v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 31, 1996
    ...at 1198 (1912) ("if State's evidence is to be believed, jury justified in finding guilt," and on ad infinitum to Banks v. State, 510 S.W.2d 592, at 595 (Tex.Cr.App.1974) (Court must view the evidence in light most favorable to verdict; in doing so, verdict will be sustained if there is "evi......
  • Watson v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 18, 2006
    ...omissions, or inconsistencies in the evidence which destroy its cogency. Id. (internal citations omitted). 63. Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim.App.1974). 64. Jackson v. Virginia, 443 U.S. 307, 312-13, 99 S.Ct. 2781, 61 L.Ed.2d 560 65. 362 U.S. 199, 199, 80 S.Ct. 624, 4 L.Ed.2......
  • King v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 29, 1995
    ...if believed, shows the guilt of the accused." Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982), quoting from Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974) (emphasis added). Eventually, we realized that this method was mistaken and expressly repudiated it. Adherence to the n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT