Grant v. State, 42592

• Decision Date: 18 February 1970
• Docket Number: No. 42592,42592
• Citation: 450 S.W.2d 642
• Parties: Douglas Lee GRANT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 642

450 S.W.2d 642

Douglas Lee GRANT, Appellant, v. The STATE of Texas, Appellee.

No. 42592.

Court of Criminal Appeals of Texas.

Feb. 18, 1970.

Howard B. Law, Donald R. Scoggins, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott, James P. Finstrom, Jim Ramsey and Russell Ormesher, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, 25 years.

The jury rejected appellant's plea of self defense and his application for probation.

The sole ground of error set forth in appellant's brief is:

'THIS APPELLANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S ALLOWING THE STATE'S ATTORNEY TO DISPLAY AN INADMISSIBLE KNIFE TO THE JURY AND BY PERMITTING TESTIMONY WHICH WAS OF NO PROBATIVE VALUE AND SERVED ONLY TO INFLAME THE MINDS OF THE JURORS AND PREJUDICE THIS APPELLANT WITHOUT REGARD TO THE FACTS.'

The knife used in the stabbing was not recovered. The knife referred to in the ground of error was marked as an exhibit and was shown to state's witnesses Glen Littles and the complaining witness from whom testimony was elicited that if appeared to be the kind of knife they saw appellant use in stabbing the complaining witness.

There was no objection in regard to the exhibiting of the knife to these witnesses or to their testimony.

Later in the trial the knife was exhibited to the father of the injured party, another state's witness, and testimony was elicited from him by the state that State's Exhibit No. 1 was not a knife that anybody found on appellant but was the knife he had bought after having it described to him, whereupon the following occurred. 'MR. LAW: (Attorney for Appellant) Your Honor, in view of this testimony, we're going to ask the Court, request the Court to withdraw this as an exhibit and instruct the jury not to--

'THE COURT: It hasn't been offered.

'MR. RAMSEY: It hasn't been offered, Your Honor.

'THE COURT: Two witnesses testified that it appeared to be like it.

'MR. LAW: We ask the Court to instruct the jury to disregard it and--

'THE COURT: They don't consider the evidence until it's admitted into evidence, of course.

'MR. RAMSEY: We don't plan to offer it as evidence.'

The knife exhibited to the witnesses was not admitted in evidence. It is not a part of the record on appeal. It is described in the record only as 'a banana knife' and as 'a...