Brown v. State
| Decision Date | 24 May 1961 |
| Docket Number | No. 33383,33383 |
| Parties | Leroy BROWN, Appellant, v. STATE or Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[171 TEXCRIM 167] Shaver, Hurley & Sowder, by Dan M. Hurley, Lubbock, for appellant.
George E. Gilkerson, Dist. Atty., Lubbock, Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
[171 TEXCRIM 168] The conviction is for assault with intent to rape with a prior conviction for the same offense alleged for enhancement; the punishment, 99 years.
The assaulted party, an 18 year old girl, testified that, about 10:30 p. m. while she was alone in the front room of her small house, dressed in pajamas and lying on the bed watching television, she heard the window in the back room being raised and the kitchen table near the window being moved; that she went to the hallway and said, 'Who is it?', then saw a negro coming through the window, and ran--screaming--out the front door with the negro in pursuit and across and down the street where he caught her and she fell on the sidewalk and 'He picked me up by my throat * * * he had me by my throat and was just taking me back' into the house, closed the door, and said he did not want any lights on in the room and turned off the light and the television, threw her on her back on the bed and got on top of her. When he first got on top of her he told her he was a negro and asked for her money, and, after she told him she did not have any money, he said he was going to rape and kill her. She further testified that he remained on top of her from 5 to 8 minutes, during which time he was holding her wrists and throat and was trying to kiss her. At this time a red light began flashing in the bed room window, he jumped up and said, 'Is there a back door?', and, without saying anything, she ran--screaming--our the front door to the police car. In a short time, the officers apprehended a negro man nearby and the assaulted party, while testifying, identified the appellant as her assailant and stated that she saw the appellant after the officers apprehended him near her house. The assaulted party further testified that when she fell on the sidewalk she injured her knees and her elbow which caused some bleeding; that then she could no longer scream because he was holding her throat with his hands; and that he was much stronger than she was and was able to hold her. While testifying, she identified a green colored cap as the one appellant was wearing in her house.
The evidence further shows that it was cloudy, had been raining, and was muddy around said house on the night in question; and that about 11 p. m. screams of a person were heard by persons near the house of the assaulted party; that the police were called and, when they arrived in a short time was red lights flashing from the emergency light on top of their car, the assaulted party ran--screaming--from her house to the police car and said, 'There's a negro in the house and he's trying to rape [171 TEXCRIM 169] me.' In a short time a man was seen on the roof of a nearby building and, upon jumping from the building, he was apprehended and subdued by the officers after a severe struggle; and the appellant, whose pants were unzipped, was then identified by the assaulted party as the person who had entered her house and caught her after she ran and returned her to the house.
An examination of the house by the officers revealed that the screen on the back window was unlatched and hanging at an angle on one hook, the shade was up, and the window completely open. The bed was disarranged; there was mud across the foot of the bed and a green colored cap on the bed, spots of blood on the sheet and pillow. The officers followed tracks leading from the rear of the house a short distance.
Proof was offered of the prior conviction alleged and that the appellant was the same person so convicted.
The appellant did not testify or offer any evidence.
The evidence is sufficient to warrant the jury's findings that the appellant was guilty of the primary offense alleged and had been theretofore convicted of a felony offense less than capital as alleged.
It is contended that the court erred by including 'fraud' in submitting the case in the charge to the jury over his objection that 'it constitutes an improper charge in this case.'
The objection did not distinctly specify any ground wherein the charge was improper as required by Art. 658,...
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Ex parte Davis
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