Brown v. State

• Decision Date: 10 September 1980
• Docket Number: No. 58106,No. 3,58106,3
• Citation: 605 S.W.2d 572
• Parties: Jimmy L. BROWN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 572

605 S.W.2d 572

Jimmy L. BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 58106.

Court of Criminal Appeals of Texas, Panel No. 3.

Sept. 10, 1980.

Rehearing Denied Oct. 15, 1980.

Donald L. Curry, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty. and Hollis Browning, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, PHILLIPS and DALLY, JJ.

OPINION

ROBERTS, Judge.

The appellant was found guilty of aggravated rape and was assessed a term of 30 years' confinement. We find a reversible error among 32 grounds set forth by the appellant.

I.

This is another case which must be reversed because of Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973), an opinion which was "unsupported by precedent and by reason, and (which has been) overruled." Ward v. State, 591 S.W.2d 810, 818 (Tex.Cr.App.1979). Also see Wrenn v. State, 597 S.W.2d 369 (Tex.Cr.App.1980); Jewell v. State, 593 S.W.2d 314 (Tex.Cr.App.1980); White v. State, 590 S.W.2d 936 (Tex.Cr.App.1979); Washington v. State, 590 S.W.2d 493 (Tex.Cr.App.1979).

The appellant's defense was alibi. In support of that defense the appellant offered evidence that at a certain time he was at his neighbor's house. The purpose of the appellant's visit was to have the neighbor fill out a form which recommended that the appellant be granted a student loan. The neighbor testified to these events and the recommendation form was received in evidence. Only the date of the form was in issue. On the form the neighbor had written, "Mr. Brown is a very intelligent young man who is trying to prepare himself for the future welfare for (sic) his fellow man." On cross-examination of the neighbor, the State asked if the quoted statement referred to the appellant's moral character. The neighbor agreed that it did. The State then asked if the neighbor knew the appellant's reputation for being a peaceful and law abiding citizen. The appellant's objection was overruled. The neighbor testified that the appellant's reputation was good. The State then asked,

"I will ask you, have you heard that Jimmy L. Brown, the Defendant in this case, has been charged by Grand Jury indictment in Lubbock County, Texas that on or about the 9th day of December, 1974, he committed the offense of burglary with the intent to commit rape?"

The question referred to an extraneous offense; the rape in this case occurred on December 11, 1974. The appellant's objections were overruled. The neighbor answered, "No." The appellant moved for mistrial,

"on the basis of this departure from the rules of evidence, particularly those governing the admissibility of reputation by impeachment testimony and contend in effect the prosecutor was enabled on cross examination to raise character and then turn right around and make impeachment type questions.

"We further move for mistrial on the basis of the injection into the record of the extraneous offense alleged to have been committed on December 9, 1974, that Mr. Griffin propounded via indirectly what he could not do directly, the alleged offense on that date, the magnitude and damage and harm of this question can not be adequately limited by any conceivable limiting instruction, particularly under the facts and circumstances as elicited in this case."

The motion for mistrial should have been granted. Even if we accept the State's argument that the recommendation form was evidence of the appellant's character it was not evidence of reputation, and the witness was not made subject thereby to impeachment with "have-you-heard" questions. Ward v. State, 591 S.W.2d 810, 818 (Tex.Cr.App.1979). The attempt by the State to turn the neighbor from a character witness (if she was one) into a reputation witness was obviously improper. "There is no better known rule than that the reputation of the defendant cannot be inquired into by the state unless the accused himself opens up the way ...." Childress v. State, 92 Tex.Cr.R. 215, 241 S.W. 1029, 1033 (1922). Cf. Els v. State, 525 S.W.2d 11 (Tex.Cr.App.1975). There was no sound justification for impeachment of the witness with "have-you-heard" questions.

The question which was asked implied strongly that the appellant had been indicted for an extraneous offense that involved intent to commit rape. In a rape trial, such a question is obviously harmful. A mistrial should have been declared, and we must grant a new trial because of the error which is discussed in grounds 12 through 18.

II.

Even though we have found reversible trial error, we must dispose of the appellant's contentions that the evidence was insufficient. Swabado v. State, 597 S.W.2d 361 (Tex.Cr.App.1980); Rains v. State, 604 S.W.2d 118 (Tex.Cr.App., No. 59,107, 1980).

The appellant claims that there was insufficient evidence that the victim suffered serious bodily injury, as alleged. "Serious bodily injury" means, inter alia, bodily injury "that causes ... serious permanent disfigurement, or protracted ... impairment of the function of any bodily member or organ." V.T.C.A., Penal Code, Section 1.07(a)(34). The victim's nose was broken and deformed on the day of the offense. The evidence was that such an injury would cause disfigurement and dysfunction of the nose if the bone were not set. In this case the bone was set, which prevented disfigurement and impairment of function. The setting of the bone did not make the evidence insufficient. The relevant issue was the disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment. See Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978) (evidence showing that such a wound, if unattended, could cause substantial risk of death was sufficient even though wound was in fact repaired). The evidence was sufficient to prove that the bodily injury was serious before it was treated medically. Grounds 5 and 7 are overruled.

Grounds 8 and 9 also challenge the sufficiency of the evidence, but they do nothing more than to argue that the jury should have had a reasonable doubt of the appellant's guilt. The evidence was conflicting, and the State's case was sufficient if the appellant's evidence was disbelieved. The grounds have no merit.

III.

Ground 19 complains that an exhibit (a pair of boots) was the fruit of an illegal search. Although the seizure of the boots involves several constitutional problems, we must sustain it ultimately.

Officer Rankin went to the appellant's apartment with a warrant for the arrest of the appellant; no question about the validity of that warrant is raised. Rankin knocked on the appellant's back door; the appellant opened the door; Rankin went into the kitchen with Detective Akers behind him and handcuffed the appellant. While Akers stood with the appellant, Rankin "checked the rest of the house to see if anyone else was in the house." (He also went to the front door and let in "the other officers.") During this search of the house, Rankin walked into the "back bedroom" and looked into the closet, where the saw a pair of boots on the floor of the closet. He did not seize the boots at that time. Presumably the officers took the appellant to jail. Rankin went to a magistrate and made an affidavit, which was sworn to at 2:13 p. m. on December 13, 1974, and which read (emphasis supplied):

"I, Earl Rankin, a Detective with the City of Lubbock Police Department have reason to believe and do believe that implements used in the commission of the crime of aggravated rape which occurred at 3708-B 54th Street in Lubbock, Lubbock County, Texas on December 11, 1974, are located, kept and possessed at a duplex apartment located at 3706-54th Street, in Lubbock, Lubbock County, Texas, said residence being more particularly described above. Said implements used in the commission of the above described aggravated rape are items of clothing described as tan work gloves, a gold shirt and hiking boots with a waffle pattern sole worn by the assailant in the above described rape.

"My belief that the above described items are located at the above described location is based upon the following: On the morning of December 13, 1974, Jimmy L. Brown, who occupies the duplex residence located at 3706-54th Street, Lubbock, Lubbock County, Texas, was arrested by me at said address for the above described aggravated rape, pursuant to a warrant for his arrest issued by Judge Charles Smith, Justice of the Peace of Lubbock County, Texas. During the course of this arrest, I personally observed hiking boots at the above described residence that match the description and have soles like the above described boots worn during the commission of the crime. Said boots left a distinctive pattern of footprints on the front porch of the residence of 3708-B 54th Street, Lubbock, Lubbock County, Texas, where the aggravated rape occurred.

"My belief is further based upon the fact that Jimmy L. Brown was placed, in a lineup on December 13, 1974, and the victum (sic) of the above described crime positively identified Jimmy L. Brown as the same person who committed the assault on her on December 11, 1974."

A search warrant issued two minutes later. The boots were seized under authority of the search warrant, and they were admitted in evidence at the trial.

The appellant argues that the warrant was obtained by the use of the fruits of an illegal search of his bedroom-the "check" that Rankin made after the arrest. In Chimel v. California, 395 U.S. 752, 762-763 & 766, 89 S.Ct. 2034, 2039-2040, 2041, 23 L.Ed.2d 685 (1969) (footnotes omitted) (emphasis supplied), the constitutional limit on searches incident to arrests was explained:

" * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might...