Hart v. State

• Citation: 447 S.W.2d 944
• Decision Date: 12 November 1969
• Docket Number: No. 42271,42271
• Parties: Gary Lee HART, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 944

447 S.W.2d 944

Gary Lee HART, Appellant, v. The STATE of Texas, Appellee.

No. 42271.

Court of Criminal Appeals of Texas.

Nov. 12, 1969.

Rehearing Denied Jan. 7, 1970.

Al Clyde, Stanley Caulfield, Dennis Morrow, Fort Worth, for appellant.

Frank Coffey, dist. Atty., John Brady, Rufus Adcock and Truman Power, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is assault with intent to rape; the punishment, 50 years' confinement in the Texas Department of Corrections.

The record reflects that on October 7, 1967, the prosecutrix went to a brightly lighted washateria on Wichita Street in the City of Fort Worth. She arrived there sometime after 8:30 p.m., left her clothes in a dryer, went to a nearby supermarket and returned to the washateria about 9 p.m. No one else was present. While the prosecutrix, who was 4 months' pregnant, was folding her clothes a young man entered the washateria, grabbed her by the right breast, hit her in the face, threw her to the floor and threatened her with a knife. After removing her dress and panties he twice made a slight penetration of her vagina with his male sexual organ and forced her with a knife at her neck to commit acts of oral sodomy on him. When the man left the washateria the prosecutrix fled to her automobile and began honking the horn until she attracted the attention of a city policeman. At the trial the prosecutrix positively identified the appellant as her assailant. The appellant's defense was alibi, which the jury, by their verdict, rejected. The indictment charged rape by force, but in its charge the court also submitted assault with intent to rape, when it was requested by the appellant.

Appellant presents 13 grounds of error which shall be considered in the order enumerated in his brief.

Initially, appellant claims the court erred 'in refusing to require the State to produce the original of the Polic Report which was made by Officer W. W. Davis, which said Report had been properly subpoenaed, for refusing to permit the defendant to examine the same and for permitting the State to offer into evidence two (2) pages only of the Police Report.'

The contention is difficult to follow in light of the record, which reveals that appellant's counsel cross examined and sought to impeach Officer Davis by the use of a copy of an offense report prepared by such witness which had been obtained by appellant's counsel prior to trial. Following such cross-examination the State, to show that the officer's testimony on direct examination was consistent with the offense report, offered into evidence a copy of such report. Appellant objected on the ground that it was not the original report. When the two page original arrived from the Fort Worth Police Department the packet also included 3 separate one page reports involving the alleged offense made by three other officers. When the two page original was identified by Davis it was introduced without objection, but the court refused the request to make available to the appellant the other 3 reports unless such officers became witnesses. Such reports were eventually sealed and made a part of the appellate record.

The 3 separate reports were never used or exhibited by the State in the jury's presence so as to bring into play the 'use before jury' rule. See Rose v. State, Tex.Cr.App., 427 S.W.2d 609. Neither was the so-called Gaskin Rule (Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467) involved. Such rule applies only to statements by the witness himself. The appellant had the witness Davis' report for the purpose of cross-examination and possible impeachment, and the other reports were not made by Davis. In fact, there is no showing that Davis had ever seen such reports. See Bryant v. State, Tex.Cr.App., 397 S.W.2d 445; Henley v. State, Tex.Cr.App., 387 S.W.2d 877; Sewell v. State, Tex.Cr.App., 367 S.W.2d 349. Cf. Rose v. State, supra.

Even though the so-called 'Gaskin Rule' is not involved, we have nevertheless examined the 3 reports attached and find them entirely consistent with the record before us and nothing material therein either to guilt or penalty so as to invoke the prosecutor's constitutional duty to disclose. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Means v. State, Tex.Cr.App., 429 S.W.2d 490.

Further, appellant's request was not sufficient to meet the requirements of a motion for discovery under Article 39.14, Vernon's Ann.C.C.P. Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807; Smith v. State, Tex.Cr.App., 409 S.W.2d 408, cert. den. 389 U.S. 822, 88 S.Ct. 45, 19 L.Ed.2d 73. And even if it had been, the reports by their very nature would have fallen within the expressed exception contained in said Article 39.14.

We fail to see how appellant was harmed by not having the entire police report. No error is presented.

Ground of error #1 is overruled.

Appellant next complains of the admission in evidence of inflammatory and prejudicial photographs of the prosecutrix taken at a hospital the morning following the alleged assault, since he argues they did not tend to resolve any disputed issue at the trial. He cites Burns v. State, Tex.Cr.App., 388 S.W.2d 690; Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880; Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314, etc. It is true that this Court has held that photographs gruesome in nature are admissible only if they tend to shed light upon a disputed fact issue. Burns v. State, supra; Pait v. State, Tex.Cr.App., 433 S.W.2d 702 and cases there cited.

It appears, however, that Echols v. State, Tex.Cr.App., 370 S.W.2d 892; Richardson v. State, 159 Tex.Cr.R. 595, 266 S.W.2d 129; and McFarlane v. State, 159 Tex.Cr.R. 658, 266 S.W.2d 133, have been decided contrary to appellant's contention in cases such as the one at bar. See also Boyd v. State, Tex.Cr.App., 419 S.W.2d 843, cert. den. 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131; 11A Texas Digest Criminal Law k438. We observe that both the State and appellant elicited testimony from the prosecutrix as to her condition and appearance before and after the alleged offense.

In Burns v. Beto, 5 Cir., 371 F.2d 598, the Court pointed out that the admission of photographs must necessarily rest largely in discretion of the trial judge. There the Court said: 'We hold that, so long as photographs accurately represent what they purport to depict and are logically relevant, their extreme gruesome and prejudicial character cannot made their admission in evidence amount to a denial of due process.'

Still further, we note that the complained of photographs were not brought forward in the record, approved without objection, and we are therefore in no position to review appellant's contention.

Ground of error #2 is overruled.

In his third ground of error appellant urges the court erred in permitting the prosecutrix to testify as to the forced acts of oral sodomy which took place during the assault. The acts of sodomy were clearly res gestae of the offense charged and were admissible as facts and circumstances surrounding the commission of the offense on the occasion in question. See Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709; Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612. See also 4 Branch's Ann.P.C., 2nd ed., Sec. 1962, p. 289.

It is well settled that '(w)here the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper.' 4 Branch's Ann.P.C., 2nd ed., Sec. 2255, p. 681. See also 23 Tex.Jur.2d, Sec. 196, p. 302; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601.

We find no merit in appellant's suggestion that the prosecutrix, the wife of a policeman, should not have been permitted to so testify since she did not report the acts of sodomy to the first officer on the scene. She did give a detailed report of such acts to an officer the following morning.

Ground of error #3 is overruled.

Appellant requests that the next three grounds of error be considered together. In these he complains of the cross-examination of a character witness on his behalf. The witness Noble or Nobles (spelled both ways in the record) who had known appellant 8 years, testified as to appellant's reputation for truth and veracity and that his general reputation for being a peaceful and law abiding citizen was 'excellent.'

On cross-examination the witness was asked, without objection, ¹ If he had heard that appellant had engaged in acts of sodomy with his (appellant's) uncle. The witness indicated he had not heard of such conduct.

In Smith v. State, Tex.Cr.App., 411 S.W.2d 548, this Court said:

'It has been held that witnesses attesting the good reputation of an accused may, as affecting the weight, credibility and sincerity of their testimony, be asked upon cross-examination as to whether they have heard of acts of the accused inconsistent with that reputation. Vance v. State, Tex.Cr.App., 365 S.W.2d 182 Linton v. State, 171 Tex.Cr.R. 213, 346 S.W.2d 320; Willard v. State, 170 Tex.Cr.R. 118, 338 S.W.2d 472; Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946.'

Subsequently, out of the jury's presence, upon interrogation by appellant's counsel it was established that the prosecutor had a sound and reliable source for his question and that it was asked in good faith. See 1 Branch's Ann.P.C., 2nd ed., Sec. 170, p. 175; Wilson v. State, 148 Tex.Cr.R. 61, 184 S.W.2d 838.

Appellant contends the question was fundamentally improper since it inquired about acts when the appellant was a juvenile. We cannot agree. France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80; 39 Tex.Digest, Witnesses k274(2). Cf. Banda v. State, Tex.Cr.App., 424 S.W.2d 938. The purpose of cross examining a character witness is to test the witness' complete knowledge of the accused. Smith v. State, Tex.Cr.App., 411 S.W.2d 548.

As to appellant's claim that the court failed...