Galvan v. State, 43171

• Decision Date: 25 November 1970
• Docket Number: No. 43171,43171
• Citation: 461 S.W.2d 396
• Parties: Manuel GALVAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 396

461 S.W.2d 396

Manuel GALVAN, Appellant, v. The STATE of Texas, Appellee.

No. 43171.

Court of Criminal Appeals of Texas.

Nov. 25, 1970.

Rehearing Denied Jan. 13, 1971.

Pete Perez, Fort Worth, for appellant.

Ed Paynter, Dist. Atty., Joe L. Guyton, Asst. Dist. Atty., Abilene and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for burglary of a private residence at night with intent to commit rape. The punishment was assessed by the court at twenty years.

The sufficiency of the evidence is challenged.

The 72-year-old prosecutrix lived with her 92-year-old mother. Appellant lived nearby. He was seen near the home of prosecutrix just before midnight on the night in question. At 1:00 a.m. a man tore a screen, broke the window and entered the home of the two women. The prosecutrix and her mother testified that the man was a Latin American and looked exactly like appellant. After the man entered the house he hit prosecutrix with a broom handle that one of the women had used as a walking stick. The prosecutrix had a broken wrist along with many other injuries. The man also hit the mother with the stick and inflicted serious injuries upon her.

After the prosecutrix was knocked unconscious, he dragged her outside. When she came to her senses she was lying on her back with the man holding her. The man pulled up her dress, grabbed her about the crotch, kissed her and asked her if she wished to have sexual relations with him. Due to her semi-conscious condition, prosecutrix did not know whether the assailant tried further. The prosecutrix was thereafter dragged back inside the house.

Police were not summoned until approximately 7:00 a.m., because the telephone lines had been cut, and because the intruder told the prosecutrix that he would kill them if they left the house.

The record shows that the two women did their own housework. They did not know appellant and there is no showing that he had been in the home previously.

A palm print was lifted from the kitchen stove and was later compared with appellant's known palm print, and the proof shows that the prints were of the same person.

The evidence shows a breaking and entering of the house without consent. There was sufficient evidence from the statements and by the assault upon prosecutrix by the assailant for the jury to conclude that the entry was with intent to commit rape.

In his first ground of error, the appellant complains that the trial court erred in admitting into evidence the transcript of testimony of the prosecutrix given at the prior trial. It is contended that a proper predicate was not laid for its introduction and that the appellant was denied his constitutional rights of cross-examination and confrontation.

It was shown through a testimony of a physician that the prosecutrix was hospitalized with a mild stroke on the evening of the first day of this trial. The doctor further testified that she was not physically able to attend the trial and would not be able to do so in the foreseeable future. On cross- examination he testified that if she progressed satisfactorily she might possibly be in a condition to testify within a month or six weeks.

The court reporter who took the testimony at the first trial identified the transcript and swore that it was a complete and accurate rendition of the testimony. The former testimony was thereafter admitted and read into evidence over appellant's objections.

'Statements made in evidence upon a previous judicial proceeding may be received upon a subsequent trial as evidence of the truth of such statements where the within who gave the evidence upon the former hearing is now dead or unavailable, provided the party against whom the evidence is now offered had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is not offered.' 1 McCormick & Ray, Texas Law of Evidence, Section 941 (2d ed. 1956).

Article 39.91, Vernon's Ann.C.C.P., specifically provides that where, because of age or bodily infirmity, such witness cannot attend, the testimony at the former trial is admissible where such was taken at any prior trial of the defendant for the same offense.

The State proved all necessary prerequisites to the introduction of the former testimony. McCormick & Ray, Texas Law of Evidence, 2d, Section 947. Further, appellant's contention that he was denied the rights of confrontation and cross-examination is without merit, it appearing that appellant's attorney, who represented him at both trials, made an exhaustive cross-examination of the prosecutrix at the first trial.

Appellant's first ground of error is overruled.

In his second ground of error, the appellant contends that reversible error was committed when the court admitted into evidence the transcript of the prosecutrix's testimony from the previous trial and that the court should have ordered the State to produce the testimony to appellant prior to trial pursuant to the motion of discovery.

Appellant and his counsel had heard the testimony and knew what the evidence would be long before it was introduced.

Appellant relies upon Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. This was an Oklahoma conviction where the principal evidence against Barber at the trial consisted of reading the transcript of the preliminary hearing testimony of a...