Brito v. State

• Decision Date: 10 November 1970
• Docket Number: No. 43129,43129
• Citation: 459 S.W.2d 834
• Parties: Gilbert Gille BRITO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 834

459 S.W.2d 834

Gilbert Gille BRITO, Appellant, v. The STATE of Texas, Appellee.

No. 43129.

Court of Criminal Appeals of Texas.

Nov. 10, 1970.

Rehearing Denied Dec. 9, 1970.

Melvyn Carson Bruder, Dallas, Court appointed on appeal, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., Edgar A. Mason and W. T. Westmoreland, Jr., Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is assault with intent to rape; the punishment, 20 years.

The offense was alleged and shown to have occurred on March 24, 1968. Appellant's trial concluded on July 17, 1968, but the appellate record did not reach this court until May 12, 1970, almost 22 months after trial.

The sufficiency of the evidence is not challenged and we do not deem a recitation of the facts essential to the proper disposition of this cause.

At the outset the appellant accuses the prosecutor of bad faith and misconduct in exhibiting to the jury a flashlight, knowing the same was not admissible or relevant evidence and resulting in prejudice and harm.

It is an undisputed fact from the testimony of the complaining witness as well as the appellant himself that he repeatedly struck her in the head with a flashlight. She testified State's Exhibit #4 appeared to be the same or similar to the flashlight with which she was struck. When she admitted that she could not testify it was the exact one, its admission into evidence was objected to on the basis that no chain of custody had been shown. At this juncture the offer of the exhibit was withdrawn by the State with the prosecutor stating it 'would be a point later in our case.' At the time, the trial judge expressed his opinion that the flashlight was admissible. When shown State's Exhibit #3, a photo of the creek bed in the park where the alleged offense took place, the appellant acknowledged that it depicted a flashlight lying in the creek bed. Then, apparently referring to State's Exhibit #4, the prosecutor asked:

'Q. It is this flashlight, isn't it? (Indicating)

'A. It was pointed at the end, the one I had.'

We do not feel Rhodes v. State, Tex.Cr.App., 427 S.W.2d 889, is controlling as urged by the State. In Rhodes, the knife in question was found on the defendant's person and the chain of custody was established which was in addition to the testimony of an eye witness that such knife appeared to be the same as used by the defendant at the time of the alleged offense. Where or how State's Exhibit #4 was obtained by the prosecution is not revealed by the record in the instant case. Whether a flashlight, fitting the description given by the complaining witness or other eye witnesses, was purchased or otherwise secured by the State, or whether the flashlight was recovered from the creek bed where testimony reflects it was dropped, is not revealed by this record. We cannot conclude, however, in light of the particular circumstances presented, that the State was guilty of misconduct or acted in bad faith. See Ortega v. State (No. 43,084). Cf. Grant v. State, Tex.Cr.App., 450 S.W.2d 642.

Next, appellant complains the trial court erred in failing to grant a mistrial upon request 'when on two occasions the prosecutor improperly asked the appellant if he were not an opprobrious person.'

Although the complaining witness, 13 years old at the time of the alleged offense, denied the statement, the 18 year old appellant testified that when he approached and asked her if she wanted to 'f---' she had said no and called him a dirty Mexican. It was for this reason on direct examination that he repeatedly claimed he struck her with a flashlight, hit her with his fists and kicked her with his feet and not because she resisted his advances.

On cross-examination the prosecutor inquired:

'Q. And when she said no, you beat her up?

'A. But, she told me I was a dirty Mexican.

'Q. In fact, she was right, wasn't she?'

Appellant's motion for a mistrial was overruled but his objection to the question asked was sustained. There was no request to instruct the jury to disregard the question asked.

Thereafter the prosecutor developed, without objection, that appellant, who had a Latin surname, also had oil or grease on his clothes at the time since he had worked 'on a car' during the particular weekend. Other testimony revealed he had been drinking heavily during the weekend and sleeping at his uncle's house near the park where the offense occurred.

Appellant further claims that subsequently the prosecutor inquired on cross-examination:

'Q. What do you have on your hands there, Gilbert?

'MR. SCOGGINS (Defense Counsel) We object to that, judge. His physical appearance has no relevance on the charge to assault with intent to rape.

'THE COURT: Objection sustained.

'Q. Do you know what a pachuca is, Gilbert?

'A. You think I am one, I am not.

'Q. No matter what you've got on your hand?

'A. If I got .....

'MR. SCOGGINS (Defense Counsel): Your Honor, we object to that. You sustained the objection and he is trying to get it in some other way.

'THE COURT: Objection sustained.

'MR. VALVOORD (Prosecutor): I didn't say that, I am just asking him now. I have no further questions of this witness.'

No further relief was requested by the appellant.

Assuming that the two pronged ground of error is in compliance with Article 40.09, Sec. 9, Vernon's Ann.C.C.P., we do not perceive, under the facts presented, any error calling for reversal.

In his third ground of error appellant contends the court erred in refusing his requests for 'an attachment of a witness' previously subpoenaed and served, and in overruling at the same time appellant's motion for continuance based on the absence of the witness for whom the attachment was sought.

The record shows that the indictment was presented on April 29, 1968, and the case was set and passed on May 13, 1968, and June 10, 1968. Appellant's first motion for continuance was overruled on July 15, 1968, and the jury was empaneled on that date. Also, on the day the trial commenced the appellant for the first time had a subpoena issued...