Carr v. State, 43847
| Decision Date | 04 January 1972 |
| Docket Number | No. 43847,43847 |
| Citation | 475 S.W.2d 755 |
| Parties | Millard Dean CARR, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joe Bob Brown, John W. Broadfoot, Amarillo, for appellant.
Tom Curtis, Dist. Atty., and Hugh Russell, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for assault with intent to rape where the punishment was assessed at 10 years.
The appeal was earlier dismissed because notice of appeal had been given prior to the pronouncement of sentence. See Article 44.08(c), Vernon's Ann.C.C.P. The trial court has now permitted the giving of a belated notice of appeal under the provisions of Article 44.08(e), V.A.C.C.P. This court now has jurisdiction to review the case on appeal.
At the outset we shall consider appellant's challenge to the sufficiency of the evidence to sustain the conviction.
Karen Droan, age 9, testified that on the night of July 4, 1969, she and her sisters, ages 4 and 7, were alone in their mother's trailer house. She related that at approximately 9:30 p.m. the appellant forced his way into the house after she refused to admit him; that he tried to make her hug him and told her to lay on the couch and pull down her clothes. When she refused he began choking her but stopped to put out a cigarette, at which time she ran and awarkened her sleeping sisters. Karen then revealed the appellant told her to put the sisters back to bed or 'he was going to get all three of us.' Karen then hid the sisters under the bed and left by the back door, stopping three men who were passing and asked for help. She testified that at this time the appellant left the trailer house and got in a car and drove off.
Karen later identified the appellant in a police lineup.
The State also offered evidence that appellant's fingerprint had been lifted from a glass table in the trailer house.
Patrick Bowers testified that on the night in question he and his brothers-in-law, Robert Brown and Dale Tarbet, had been to the Guys and Dolls Lounge, and that as they were leaving a little girl ran from a nearby trailer house and stated a man was in her house trying to kill her and her sisters; that he observed a man come out of the house, get into a blue and white Chevrolet, a Chevy II, and drive off. Bowers and his companions followed, but because of their speed they were unable to turn when the Chevrolet turned and contact was lost. When they returned to the trailer house they saw the car in question on the parking lot of the Guys and Dolls Lounge. The police were called. After a policeman finally got a response from the trailer house a little girl ran out, grabbed the policeman around the waist and said a man had been there trying to rape her and her sisters. As the officer and others walked toward the Chevrolet a man entered the car and drove off despite the officer's command to halt. Bowers was unable to identify the man in the Chevrolet.
Robert Brown substantially corroborated Bowers' testimony, adding that they had obtained the license number of the car when they first started to follow it.
Officer Hindergradt, Amarillo police department, testified he responded to the call, and his testimony as to what occurred after his arrival at the trailer house also corroborated that of Bowers. He related that he hollered 'stop' as the Chevrolet left the parking lot and when it did not he obtained the license number, being 1969 Texas plate BXY 951. He identified State's Exhibit #1 as being a picture of the car he had seen that night.
It was shown by other evidence that the vehicle was registered in the name of appellant's wife used prior to their marriage and it was shown that appellant was using and had control of the car on June 26, 1969.
The appellant did not testify but offered alibi testimony and the fact he was using a Ford station wagon on the date in question.
The defense of alibi was submitted to the jury and by its verdict rejected.
We find the evidence, considered in the light most favorable to the verdict, sufficient to sustain the conviction.
Next, appellant complains the court erred in permitting the complaining witness, a child nine years old, to testify. There was no objection urged as to such testimony or any question of her competency as a witness raised during the trial. Usually, the competence of a witness is waived when she is permitted to testify without objection. English v. State, 170 Tex.Cr.R. 56, 338 S.W.2d 446. Unless a child's testimony shows on its face that he or she was incompetent to testify complaint as to her incompetency raised for the first time on motion for new trial or on appeal comes too late. Dubois v. State, 164 Tex.Cr.R. 557, 301 S.W.2d 97, cert. den. 356 U.S. 921, 78 S.Ct. 705, 2 L.Ed.2d 717. See also 4 Branch's Ann.P.C., 2d ed., Sec. 1945, p. 264.
The testimony her in question certainly does not reflect on its face that the witness was incompetent. In fact, the contrary is shown. Further, it is observed that subsequently on its own motion the court intervened and refused to permit the 7 year old sister of the complaining witness to testify on the ground of incompetency.
No error is shown.
Further, appellant contends he was deprived of due process because the court asked questions of witnesses, permitted jurors to ask questions of the witnesses and allowed 'a spectator to rise in the courtroom and ask questions.' He urges he was subjected to an unbelievable 'Perry Mason' type of trial, particularly because he was representing himself at the time of trial.
The ground of error appears to be multifarious and does not point out the particular portions of the record to which the appellant may have reference. For failing to comply with Article 40.09, V.A.C.C.P., nothing is presented for review. A study of the record in connection with other grounds of error reflects that during the cross-examination of the complaining witness the court instructed her not to nod her head but to answer the question. At this point the transcription of the court reporter's notes reflects:
Nothing else as to a spectator appears in the record.
On several occasions 'a juror' was permitted to ask questions. Whether this was the same juror or different jurors is not shown. Each such question asked served to elicit from the particular witness the fact that he was unable to make an identification of the appellant as the man he saw. We fail to perceive how these questions permitted by the court without objection were improper or harmful to the appellant. Nowhere in the record have we found any interrogation of a witness by the court that could be considered improper. Cf. 1 Branch's Ann.P.C., 2d ed., Sec. 288, p. 331.
The most serious of appellant's contentions is that the court erred in allowing him to be tried without the aid of counsel.
This record reflects that at the time of trial appellant was 30 years old, had been previously convicted of a felony in Ohio and had on his own studied law during and after his confinement on such conviction and had on a previous occasion acted as his own counsel during a divorce action.
The alleged offense was shown to have occurred on July 4, 1969. On July 5, 1969, the appellant was arrested and advised of his rights by the magistrate. See Article 15.17, V.A.C.C.P. The appellant, who was employed at $1.60 an hour by the Atex Oil Company and who also leased a service station, made a $15,000 bond. On July 8, 1969, he consulted with attorney Charles Fairweather concerning the charges against him. The indictment was returned on July 9 and the appellant was re-arrested and bail set at $50,000 at the request of the district attorney. A copy of the indictment was served upon the appellant on July 10, and on the same day he appeared in District Court and advised the judge that Fairweather was his employed counsel. The following day the appellate wrote the court requesting appointment of counsel, and the court appointed Joe Bob Brown who subsequently talked with the appellant in jail. At the docket call on August 4 Fairweather informed the court he would represent the appellant whether he was paid or not. It appears then that Fairweather was appointed by the court and Brown was permitted to withdraw.
It also appears that while in jail the appellant talked with attorneys Wolfram and Humphreys though neither entered the case as his counsel. Subsequently on August 25, 1969, Fairweather requested the appointment of a psychiatrist to examine the appellant. On September 8, 1969, the trial date agreed upon, a request was made to pass the case until September 15, 1969, since the psychiatrist had not 'reached a diagnosis.' By letter dated September 11, 1969, the psychiatrist informed the court that in his opinion the appellant was legally sane.
On September 16, 1969, the appellant appeared in court with attorney Fairweather. Although Fairweather stated he was ready and prepared for trial, the appellant requested his discharge and the court honored the request. The court then stated its intention to vacate the setting and appoint the appellant any lawyer he (the appellant) named or allow him to employ counsel of his own choice. When appellant discovered this meant he would not go to trial the next day, he declined the offer. The record reflects the following:
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