Cherb v. State

• Decision Date: 02 November 1971
• Docket Number: No. 43795,43795
• Citation: 472 S.W.2d 273
• Parties: Frederick L. CHERB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 273

472 S.W.2d 273

Frederick L. CHERB, Appellant, v. The STATE of Texas, Appellee.

No. 43795.

Court of Criminal Appeals of Texas.

Nov. 2, 1971.

Clayton & Clayton by D. Lyman Stubblefield, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Hugh Russell, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ON APPELLANT'S MOTION TO REINSTATE APPEAL

ROBERTS, Judge.

On May 19, 1971, we dismissed the appeal in this cause for the reason that no notice of appeal was contained in the record as required by Art. 44.08, Vernon's Ann.C.C.P.

By supplemental transcript it is shown that permission of the trial court to give notice of appeal After ten days from the date of sentencing had expired was granted in accordance with Art. 44.08(e), V.A.C.C.P., and that such notice has been given.

Accordingly, the appeal is properly reinstated. Smith v. State, Tex.Cr.App., 424 S.W.2d 228 (1968); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App., 1967).

The offense is burglary to commit theft. Trial was before a jury which set the punishment at twelve years confinement.

Appellant's four grounds of error are:

(1) Allowing an accomplice to testify because the accomplice was under duress and force.

(2) Allowing the introduction into evidence of two affidavits given by two witnesses.

(3) Allowing the State to impeach its own witness without proper predicate.

(4) Insufficient evidence.

Appellant's accomplice, Larry Brawner, testified that he had pled guilty to the same offense earlier that day. He stated that he was testifying against his will and that doing so would be a violation of his constitutional rights. The court instructed him to testify, notwithstanding his objections.

Brawner testified that he and appellant, along with another person or persons, on December 18, 1969, left the apartment where they and several girls had been staying and broke into a tavern or bar. Brawner stated that entrance to the bar was gained through an air conditioning duct on the roof of the bar, and that appellant went down the duct, tearing his trousers in the process. He testified that he and appellant broke into several of the coin-operated machines in the bar and took some money from them. After the burglary, according to Brawner, the group returned to the apartment and hid the money, which was in a coin bag, in a cabinet above the kitchen sink in the apartment.

Odessa Harrison, one of the girls who was in the apartment with appellant and Brawner, testified that appellant left the apartment with the group on the night in question, then returned and passed out. The group, according to the witness, then left again, returning later with a bag of change which was placed in a kitchen cabinet.

Neva Henderson, another of the girls who was in the apartment, testified that she did not see any of the boys who were in the apartment leave, and that she had not talked to them in regard to a burglary, nor seen them count any money.

Counsel for the State then asked her if she had given a statement to the local police, and she said that she had. He then handed her State's Exhibit No. 1, and asked her to identify it. She said that she had signed it. The prosecutor then stated that the exhibit was an instrument which she had signed on December 24, 1969.

Over appellant's objection that there was no proper predicate, nor proper identification of the exhibit, counsel for the State began to read the exhibit, ¹ asking after each statement contained therein whether the statement was true, and also, in some instances, whether the witness had made the statement. The witness admitted that all the statements were true, except that she denied that appellant left the apartment with the other boys. She did, however, answer as follows at one point during her testimony:

'Q 'On or about Friday, December 19, 1969, about 2:00 A.M., Luke, Jimmy, Freddie and Larry left the apartment.' Did you make that statement?

'A Yes.

'Q Is it true?

'A Yes.

'Q 'The boys came back between 3:30 A.M. and 4:00 A.M.' Did you make that statement?

'A Uh-huh.

'Q Is it correct?

'A (Witness nods head up and down.)'

Later, she denied having said that the statement was true. She did admit, upon further questioning, that she had told the district attorney the day before that the entire statement was true, but that she had lied in so telling him, and that it was not true in all respects.

The State then recalled Odessa Harrison. She verified that she saw three men leave the apartment, but that appellant did not leave with them. The State then produced its Exhibit No. 2, ² which the witness identified as being her statement. She also admitted that she had discussed it previously with the prosecutor, and that on the day before trial, she had told him that she had signed it and subscribed it, and that it was true.

The prosecutor then went over the affidavit with her, reading various parts of it and asking the witness whether she had made that particular statement and whether that statement was true. The witness answered that she had made each of the statements, and admitted that most were true. She admitted stating that appellant made a statement about breaking into a bar but denied that her statement was true. She did admit making statements that all of the boys left the apartment twice on the night in question, that appellant handed a 'First National Bank' bag which contained coins to her, that appellant instructed her to count the money, and that appellant hid the money under a chair when a man came to the door. She further stated that these statements were true.

Later, she said that appellant did not leave, but was unconscious at the time the other boys left the apartment.

The State then offered the affidavit into evidence for the purpose of impeachment and it was received over objection by appellant.

The owner of the bar stated that his bar, Rene's, had been burglarized, and that the air conditioning vents were damaged, i.e., bent inward. He further testified that certain coin-operated machines in the bar had been broken into, and that coins had been taken from the lounge. He also testified that he kept a number of bank bags marked 'First National Bank' or 'North State Bank,' in his bar.

A police officer, who had investigated the burglary, testified that entry was gained through the air conditioning vent on the roof, and that the coin-machines had been pried open.

Appellant called two witnesses in his behalf.

Appellant contends that the court erred in admitting the testimony of Larry Brawner, the accomplice, for the reason that he was testifying against his will, and that to allow such testimony 'would be shocking to the conscience of the court.' No authorities are cited in support of this contention.

It is well settled that the privilege against self-incrimination is personal to the witness, and cannot be asserted by a party in respect to the witness, e.g., United States v. Ceniceros, 427 F.2d 685 (9th Cir. 1970); Bowman v. United States, 350 F.2d 913 (9th Cir. 1965); Campbell v. State, 172 Tex.Cr.R. 431, 358 S.W.2d 376 (1962). Further, in this case, Brawner had no privilege to claim, as he had already pled guilty to the offense. United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967). The contention is without merit.

Appellant also contends that the court erred in permitting the State to impeach its own witnesses.

This Court has held that a trial court may, in its discretion, permit counsel for the State to ask leading questions of a hostile witness on direct examination. Holbert v. State, 457 S.W.2d 286 (Tex.Cr.App., 1970). Further, this Court has held that a procedure like the procedure followed in the instant case was not error. Wright v. State, 422 S.W.2d 184 (Tex.Cr.App., 1967). In that case, counsel for the State produced a written statement which the State's witness admitted making and signing. The prosecutor then read portions of the statement to the witness and asked if they were true. She admitted that they were. This Court held that there was no improper impeachment by the State of its own witness. Also see Gauntt v. State, 169 Tex.Cr.R. 520, 335 S.W.2d 616, 619 (1960).

The weight of authority also supports the proposition that a party may interrogate its own witness concerning prior inconsistent statements, when the party is surprised by the witnesses' unfavorable testimony. It is stated at 58 Am.Jur., Witnesses, § 801:

'The cases are practically in accord in holding that a party who is surprised by unfavorable testimony of his own witness may interrogate such witness as to previous inconsistent statements made by him, * * *. The trial court may exercise a sound discretion in permitting or denying such examination. It may permit the party to put leading questions to his witness on direct examination, or to change the character of the examination from direct examination to cross-examination. The purpose in thus interrogating the witness concerning his previous statements is * * * to probe his conscience and induce him to correct his testimony * * * or to lay a foundation for impeachment by inconsistent statements.'

See, e.g., Hickory v. United States, 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170 (1894); United States v. Allied Stevedoring Corp., 241 F.2d 925, 932 (2nd Cir. 1957); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956); Curtis v. United States, 67 F.2d 943, 946 (10th Cir. 1933); Di Carlo v. United States, 6 F.2d 364, 368 (2nd Cir. 1925); People v. Quevreaux, 407 Ill. 176, 95 N.E.2d 62 (1950); Baum v. State, 60 Tex.Cr.R. 638, 133 S.W. 271 (1911). Also see Anno. 74 A.L.R. 1042.

In the instant case, there was no showing of surprise on the part of the State prior to the interrogation of Neva Henderson. There was, however, such a showing After the interrogation. In addition, there was a discussion at the bench between court and counsel, the content of which is not in the record. Later, however, the court stated...