Brown v. State, 49837

• Citation: 523 S.W.2d 238
• Decision Date: 21 May 1975
• Docket Number: No. 49837,49837
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Parties: William Sloan BROWN, Appellant, v. The STATE of Texas, Appellee.

Page 238

523 S.W.2d 238

William Sloan BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 49837.

Court of Criminal Appeals of Texas.

May 21, 1975.

Victor Hlavinka, Texarkana, for appellant.

Lynn Cooksey, Dist. Atty., Boston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for the offense of murder with malice, wherein the jury assessed the punishment at twenty (20) years' confinement in the Department of Corrections.

The sufficiency of the evidence is not challenged. The deceased was the ten month old stepdaughter of the appellant. He had met his wife, Jeanette, when she was seven months pregnant, and they married shortly after the birth of the deceased, Tina Renee Hicks.

Appellant's extrajudicial confession was introduced, which recited he started spanking the child when she was six or seven months old, and that when the child cried and didn't seem to want to have anything to do with him, he would lose this temper and spank her on the butt and legs, bruising her. He related one instance where he struck the child with a belt on the legs and in the face. One or two days before the death, he admitted he got 'god-damn rough' and broke the child's leg. On the day of the death he, his wife, and the deceased child were riding in a pickup and the child would not put any weight on her right leg, so he would place her hands on the dashboard and pull her left leg out from under her, trying to make her stand on the right leg. This was done a number of times, and each time the child's head would hit the dashboard. When the child started bleeding from the mouth and appeared unconscious, she was taken to the hospital. Much of the State's other testimony served to corroborate the confession. Drs. Bell and Smith testified to unsuccessful efforts to resuscitate the child after she was brought to the hospital by the appellant and his wife on August 12, 1973. Dr. Pope, who performed the autopsy, stated the cause of death was a blood clot in the brain which resulted from an injury to the head. All three doctors testified as to their observations of numerous bruises on the deceased's body.

Initially, appellant asserts the trial court abused its discretion in excluding seven witnesses from the Rule after he had asked that the Rule be invoked.

Appellant in his brief asserts that these were Lt. Slover, Detective Sanders and Officer Clingan of the Texarkana city police, Justices of the Peace Grigson and Burkhalter, Texas Ranger Max Womack, and Hubbard McDuffie, one of the grand jurors who returned the indictment in question.

When the Rule was invoked, the court, sua sponte, stated, 'All of you gentlemen who are officers of this Court are excused from the Rule.'

The appellant's counsel objected to excusing 'the officers from the Rule' and the court stated, 'The exception is noted.' When appellant's counsel inquired if it be necessary to object to each officer's testimony 'as he begins,' the court replied in the negative and stated the record showed the objection and the exception was noted.

Nowhere in this record are the 'officers' excused from the Rule identified, and we are unable to tell which witnesses were actually excused at the time. It is well established that this court cannot accept as fact allegations or assertions in an appellate brief which are not supported by the record. See Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1973); Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).

We have carefully examined the record to determine if it reflects which witnesses may have heard the testimony in the case. Ranger Womack, who briefly testified only at the Jackson-Denno-Article 38.22, Vernon's Ann.C.C.P. hearing on the admissibility of the confession in the absence of the jury, related he had been present during the testimony of Officers Slover and Sanders and Justice of the Peace Grigson during such hearing. Officer Clingan was asked during his testimony before the jury if he had been present 'during any interrogation of any witness' at the trial, and he replied in the affirmative. The matter was not pursued and it was not estabished which witness or witnesses he heard. Justice of the Peace Burkhalter, when asked if he was present during the interrogation of any other witness, stated, 'Only just a little bit this morning . . . of Mrs. Brown.'

It is observed that none of these witnesses were ever asked if they had been among those who had been excused from the Rule by the court.

In light of the record before us and the lack of identity of the witnesses excused from the Rule as 'officers of this Court,' we cannot conclude that error is shown.

Even if a witness violates the Rule and the court nevertheless permits the witness to testify, the matter is one addressed to the discretion of the court and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised. Owens v. State, 503 S.W.2d 271 (Tex.Cr.App.1974); Murphy v. State, 496 S.W.2d 608 (Tex.Cr.App.1973).

The Rule is provided for in Article 36.03, Vernon's Ann.C.C.P., and the enforcement of the Rule is in the discretion of the court. See Article 36.04, Vernon's Ann.C.C.P.

It is well established that the object to be attained by placing witnesses under the Rule is to prevent one witness from being influenced by the testimony of another, Carlile v. State, 451 S.W.2d 511, 512 (Tex.Cr.App.1970), and cases there cited. While wide discretion is confided in the trial judge with regard to application of the Rule, the discretion granted is not an arbitrary discretion. Carlile v. State, supra. Trial judges, in all fairness, are cautioned not to make, sua sponte or otherwise, wholesale exclusions from the Rule under the guise of excusing 'officers of the Court,' thus permitting the material witnesses of one party to remain in the courtroom while the witnesses for the other party are excluded, even though that practice has long prevailed in certain counties. Only recently in King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974), this court stated in footnote #5, 'It should be noted that law enforcement officers who are witnesses in a case are not officers of the court unless they are acting in a limited capacity as bailiffs (see Art. 36.24, V.A.C.C.P., forbidding a witness to serve as bailiff) or in some other capacity as instructed by the judge.'

For the reasons stated, however, the appellant's initial contention is overruled.

Appellant further complains that the State was improperly permitted to impeach its own witness, Vera Brown, without laying a predicate to show surprise.

Much confusion seems to exist among the bench and bar about when a party may impeach its own witness. It is well established, however, that a party may not impeach his own witness Unless the witness testifies to facts injurious to that party's case and that party demonstrates that he was suprised by such testimony. See Article 38.28, Vernon's Ann.C.C.P.; Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974); Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974). It is not sufficient in laying the predicate for impeachment for the party to claim or merely state to the court that he has been surprised. He should demonstrate surprise by the procedure outlined in Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529 (1959), by showing outside the presence of the jury his prior conversations with the witness or the prior statement, etc. Banks v. State, supra; Williams v. State, 521 S.W.2d 250 (Tex.Cr.App.1975).

It is simply not sufficient to justify impeachment that the witness merely fails to testify as expected or to remember facts favorable to the party calling the witness. Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972); Wood v. State, supra. It is this point which is not understood by many lawyers. It should also be remembered that foreknowledge that a witness will testify as he does precludes impeachment though testimony given is decidedly adverse on a vital issue. Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). The purpose of the rule requiring a showing of surprise is to prevent a party from calling a witness who the party knows will testify adversely to such party and then, under the guise of impeachment or cross-examination, present before the jury evidence which the party would have hoped to elicit from the adverse witness. Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Webb v. State, 503 S.W.2d 799 (Tex.Cr.App.1974).

With this background, we now turn to the facts...