Duncan v. State

• Citation: 339 S.W.2d 220,170 Tex.Crim. 132
• Decision Date: 25 May 1960
• Docket Number: No. 31906,31906
• Parties: Rondell DUNCAN, Appellant, v. STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 220

339 S.W.2d 220

170 Tex.Crim. 132

Rondell DUNCAN, Appellant, v. STATE of Texas, Appellee.

No. 31906.

Court of Criminal Appeals of Texas.

May 25, 1960.

Rehearing Denied Oct. 19, 1960.

Robert M. Allen, Henderson, Power, McDonald & Mell, by Milton Greer Mell, Gilmer, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The offense is rape; the punishment, five years.

The evidence from the standpoint of the State, including the testimony of the 16 year old prosecutrix, that of her mother and the physician who examined the prosecutrix, and that of the sheriff shows that the appellant committed the offense charged against him.

Appellant testifying in his own behalf admits that he and the prosecutrix attended a theater and afterwards parked in a rural area where they engaged in hugging, kissing and other intimacies to the extent that he fingered her sexual parts which could have caused the condition as shown by the examination of the physician. He denied any act of intercourse or that he made any effort to accomplish it.

Appellant contends that the trial court erred in overruling his subsequent motion for a continuance because of the absence of Bruce Howell for whom a subpoena had been returned unserved.

The subpoena for Bruce Howell was issued December 4, 1959, and the trial began December 7, 1959. The second application, dated December 7, alleged that the appellant expected to prove by Bruce Howell that he had had sexual intercourse with the prosecutrix before the date of the offense charged in the indictment.

It is alleged that the offense was committed July 21, 1959. Appellant was arrested July 22, and the indictment was returned against him September 9. He first employed an attorney July 24 or July 25 and after his withdrawal on September 11 he engaged another September 18, who withdrew on November 14, and he employed other counsel on the same day who also withdrew November 22, and he engaged present counsel December 3, 1959.

The first trial was set for October 19, but the first application for a continuance was presented and granted October 15, and the case was then reset for trial December 7.

There is no showing in the record that the witness had ever been located. There is no affidavit by Bruce Howell or a showing under oath from any source what his testimony would have been if present. The motion fails to allege that if the act occurred the prosecutrix voluntarily and willingly submitted.

No abuse of discretion is shown by the trial court in overruling the subsequent motion for a continuance. Arts. 543, 544, Vernon's Ann.C.C.P.

Appellant contends that the trial court erred in overruling his motion for a mistrial following the volunteered statement of the mother that the father of the prosecutrix was killed in the service three days after her birth.

This arose during the cross-examination of the mother when she was asked if the prosecutrix was her daughter by a previous marriage and she answered: 'Yes, sir, her father was killed in the service three days after her birth'.

Appellant's counsel immediately moved for a mistrial because of the volunteered unresponsive, inflammatory and prejudicial statement of the witness which motion was overruled. He next requested and the court instructed the jury not to consider the witness' answer for any purpose.

The trial court's prompt instruction to the jury not to consider said statement for any purpose, and there being no further reference thereto, it is concluded that there was no error in refusing a mistrial. Andrews v. State, 163 Tex.Cr.R. 81, 289 S.W.2d 262.

It is urged that the trial court erred in permitting the state while making out its case in chief to bolster the testimony of the prosecutrix by allowing her to testify what she told her mother when she arrived home.

The first witness of the state was the mother of the prosecutrix. She testified that when the prosecutrix returned home she went to her room and called to her, and that when she entered the room she saw that the prosecutrix was disturbed and was shaking and jerking, her legs were scratched and bleeding and her body was bruised; and that her clothing was torn, dirty and rempled. She further testified that the prosecutrix then told her that the appellant raped her and that she did all she could to prevent it. The testimony of both the prosecutrix and the appellant shows that they went from the place where they were parked to her home and that they did not contact or talk to anyone on the way. The above testimony of the mother was admissible as res gestae. 35 Tex.Jur., Secs. 43-45; 1 McCormick and Ray (2nd Ed.) Sec. 927.

The prosecutrix was called to testify after her mother and that portion of her testimony showing what she told her mother immediately after she arrived home was substantially the same as that testified to by the mother. This portion of her testimony was admissible as res gestae and its admission was not error. France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80; Jundt v. State,...