Chapman v. State, 47141
| Decision Date | 30 January 1974 |
| Docket Number | No. 47141,47141 |
| Citation | 504 S.W.2d 912 |
| Parties | Glenn CHAPMAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
F. R. Files, Jr., Tyler, for appellant.
Curtis Owens, Dist. Atty., Tom Tatum, Asst. Dist. Atty., Tyler, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
The offense is sale of marihuana; the punishment, twelve and one half (12 1/2) years.
By ground of error number one it is contended the court erred in admitting into evidence State's Exhibit No. 2, an offense report made by the State's witness Maxey. Maxey testified that he came to Tyler to serve undercover, ferreting out narcotics violations, in 'the first part of June 1971'. On cross-examination he was asked if he had not testified in another case that he came to Tyler in the last part of June 1971. The witness answered, 'There was a discrepancy on my part then (at the other trial) because I meant the latter part of May.' The date of his arrival in Tyler was important because the offense report was dated June 7, 1971, and related to the events of the day before. It is apparent from the above that this witness was testifying differently from what he had previously stated. This is important because appellant contends that the offense report was not admissible because it only bolstered the witness Maxey's testimony where he had not been impeached as the same is defined in the opinion of this Court in Acker v. State, 421 S.W.2d 398. In that case we had occasion to point out that a rigid cross-examination of a witness would not authorize corroboration, but that if the witness (as the witness in the case at bar) is placed in an attitude of having changed his testimony or having testified differently now from what he had formerly stated then corroboration is authorized. It is clear that State's Exhibit No. 2 corroborated the witness's testimony that the offense occurred in the first part of June 1971.
Ground of error number one is overruled.
Ground of error number two contends that the prosecutor commented on appellant's failure to testify. During the trial appellant's counsel had taken the witness Maxey to task for not having learned the names of appellant's companions on the day in question and the make and license of the automobile in which they were seated. In his argument the prosecutor said:
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