Branch v. State, No. 42306

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtWOODLEY; DOUGLAS
Citation447 S.W.2d 932
Docket NumberNo. 42306
Decision Date10 December 1969
PartiesElmer BRANCH, Appellant, v. The STATE of Texas, Appellee

Page 932

447 S.W.2d 932
Elmer BRANCH, Appellant,
v.
The STATE of Texas, Appellee.
No. 42306.
Court of Criminal Appeals of Texas,
Dec. 10, 1969.

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 insufficient as a pleading. Johnston v. State, Tex.Cr.App., 396 S.W.2d 404, cert. denied, 384 U.S. 1024, 86 S.Ct. 1976, 16 L.Ed.2d 1029; Clifton v. State, 170 Tex.Cr.R. 245, 339 S.W.2d 902; Roberson v. State, 160

Page 934

Tex.Cr.R. 381, 271 S.W.2d 663; Brown v. State, 160 Tex.Cr.R. 150, 267 S.W.2d 819; Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214; Hicks v. State, 158 Tex.Cr.R. 45, 251 S.W.2d 409.

Ground of error No. 3 presents the contention that the judgment of conviction with punishment assessed at death violates the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States; and poses the question of whether capital punishment inflicted as a punishment for 'a crime less than murder' constitutes cruel and unusual punishment within the meaning of the Eighth Amendment, and whether when inflicted in a rape case involving a Negro defendant and a Caucasian complaining witness such a defendant has been deprived of equal protection of law under the provisions of the Fifth, Eighth and Fourteenth Amendments.

Appellant relies upon the dissenting opinion in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, but concedes that this court has held that death in a rape case does not constitute cruel and unusual punishment and is not unconstitutional. Siros v. State, Tex.Cr.App., 399 S.W.2d 547.

Ground of error No. 3 is overruled.

The fourth ground of error...

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17 practice notes
  • Harris v. State, No. 42896
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 1970
    ...v. State, Tex.Cr.App., 434 S.W.2d 678, which was held not to contravene the Witherspoon doctrine. See also Branch v. State, Tex.Cr.App., 447 S.W.2d 932; Whan v. State, Tex.Cr.App., 438 S.W.2d Further, in Scott v. State, supra, this Court said: 'The fact that one or more veniremen may have b......
  • Ex parte Bower, No. 70995
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 4, 1991
    ...imposition of and carrying out the death penalty under statutory schemes implicated in those cases, including our own Branch v. State, 447 S.W.2d 932 (Tex.Cr.App.1969). Lockett v. Ohio, 438 U.S. 586, at 602-604, 98 S.Ct. 2954, at 2963-2964, 57 L.Ed.2d 973, at 988-989 (1978). For a synthesis......
  • Furman v. Georgia Jackson v. Georgia Branch v. Texas 8212 5003, 69 8212 5030, 69 8212 5031, Nos. 69
    • United States
    • United States Supreme Court
    • June 29, 1972
    ...in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969). Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these c......
  • Sorola v. State, No. 1112-87
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 1, 1989
    ...2; see Historical Notes to each. Putting aside fundamental questions of cruel and unusual punishment raised in, e.g., Branch v. State, 447 S.W.2d 932, at 934 (Tex.Cr.App.1969), and resolved in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), we find diverse attacks on ......
  • Request a trial to view additional results
16 cases
  • Harris v. State, No. 42896
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 1970
    ...v. State, Tex.Cr.App., 434 S.W.2d 678, which was held not to contravene the Witherspoon doctrine. See also Branch v. State, Tex.Cr.App., 447 S.W.2d 932; Whan v. State, Tex.Cr.App., 438 S.W.2d Further, in Scott v. State, supra, this Court said: 'The fact that one or more veniremen may have b......
  • Ex parte Bower, No. 70995
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 4, 1991
    ...imposition of and carrying out the death penalty under statutory schemes implicated in those cases, including our own Branch v. State, 447 S.W.2d 932 (Tex.Cr.App.1969). Lockett v. Ohio, 438 U.S. 586, at 602-604, 98 S.Ct. 2954, at 2963-2964, 57 L.Ed.2d 973, at 988-989 (1978). For a synthesis......
  • Furman v. Georgia Jackson v. Georgia Branch v. Texas 8212 5003, 69 8212 5030, 69 8212 5031, Nos. 69
    • United States
    • United States Supreme Court
    • June 29, 1972
    ...in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969). Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these c......
  • Sorola v. State, No. 1112-87
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 1, 1989
    ...2; see Historical Notes to each. Putting aside fundamental questions of cruel and unusual punishment raised in, e.g., Branch v. State, 447 S.W.2d 932, at 934 (Tex.Cr.App.1969), and resolved in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), we find diverse attacks on ......
  • Request a trial to view additional results
1 firm's commentaries
  • <em>Furman</em> at 50: so much and so little
    • United States
    • LexBlog United States
    • June 29, 2022
    ...in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon’s Tex. Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969). Certiorari was granted limited to the following question: ‘Does the imposition and carrying out of the death penalty in (these ......

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