Hawkins v. State

• Decision Date: 24 February 1982
• Docket Number: No. 1,No. 61712,61712,1
• Citation: 628 S.W.2d 71
• Parties: Samuel C. HAWKINS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 71

628 S.W.2d 71

Samuel C. HAWKINS, Appellant, v. The STATE of Texas, Appellee.

No. 61712.

Court of Criminal Appeals of Texas, Panel No. 1.

Feb. 24, 1982.

Russell Busby, Amarillo, for appellant.

Roland Saul, Dist. Atty., Hereford, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape. Trial was held in Harris County following a change of venue from Deaf Smith County. After the jury found appellant guilty, the court assessed punishment, enhanced by two prior felony convictions, at life.

The complainant testified that on September 2, 1976, she woke up at approximately 8:00 a.m. and found an intruder in her bedroom. The individual was nude and wearing a mask. The complainant related that her assailant was armed with a knife and threatened to kill her. He then forced her to have sexual intercourse. Before raping the complainant a second time, the assailant took the mask off his face. The complainant identified appellant as the individual who forced her to have sexual intercourse.

In his first and second grounds of error, appellant maintains the prosecutor engaged in improper jury argument at the conclusion of the guilt or innocence phase of the trial. The record fails to reflect that appellant voiced an objection to either of the instances of which he now complains. In the absence of an objection, nothing is presented for review. Sanchez v. State, Tex.Cr.App., 589 S.W.2d 422.

In his third ground of error, appellant maintains the court erred in accepting his plea of "true" to the enhancement allegations in the indictment. He contends that the record reflects that appellant "never unqualifiably entered a plea of true."

The record reflects that after the prosecutor presented the enhancement allegations, the court asked appellant for his plea to such allegations and appellant responded in the following manner:

"THE COURT: To which previous convictions the defendant pleads, true or not true?

"MR. HAWKINS: Are you asking me on the prior convictions?

"THE COURT: Yes. True or not true.

"Do you want to confer with your lawyers?

"MR. HAWKINS: Judge, to the best of my ability, those convictions, I think, are true.

"...

"MR. HAWKINS: I would think they are true.

"...

"THE COURT: I believe he has pleaded true to two previous convictions alleged.

"Is that true, you are pleading you were in fact convicted once in Colorado and once in Oklahoma, Mr. Hawkins, as alleged in the indictment? "MR. HAWKINS: I think so. Yes, sir."

We find that the record fails to support appellant's contention that he entered a "qualified" plea of "true" to the enhancement allegations. See Sylvester v. State, Tex.Cr.App., 615 S.W.2d 734. Appellant's third ground of error is without merit.

In his fourth ground of error, appellant maintains the court erred in sua sponte excusing a prospective juror. A trial court should not on its own motion excuse a prospective juror for cause unless he is absolutely disqualified from serving on the jury. Valore v. State, Tex.Cr.App., 545 S.W.2d 477. In the instant cause, appellant did not voice an objection at the time the prospective juror was excused. Nothing is presented for review. Bodde v. State, Tex.Cr.App., 568 S.W.2d 344.

In his fifth ground of error, appellant contends the court erred in allowing the Honorable Roland Saul to represent the State during the proceedings conducted on June 30, 1978. Appellant's contention is based upon the following statement made by Saul during the voir dire examination:

"Ladies and gentlemen, as Mr. Bodiford and the Judge told you, my name is Roland Saul. I am the District Attorney Elect of Deaf Smith County, Texas and it's gotten us in a little bit of a precarious position. The District Attorney has resigned as of 12:01 A.M., July 1, which means at midnight or a little after tonight I will be the District Attorney. But I am stepping in a little early to pick the jury on this case."

Appellant has not directed our attention to any objection he voiced to Saul's authority to represent the State during the proceedings conducted on June 30. Further, appellant's ground of error represents an impermissible collateral attack upon Saul's authority. If appellant desires to challenge such authority, he must bring a direct action through a quo warranto proceeding. See Archer v. State, Tex.Cr.App., 607 S.W.2d 539. Appellant's fifth ground of error is without merit.

In his sixth ground of error, appellant contends the court erred in failing to grant his motion to quash the indictment. The indictment in the instant cause alleges in pertinent part that on September 2, 1976, appellant did:

"then and there knowingly and intentionally by force and threats have sexual intercourse with H J. W , a female not his wife, and inflicted serious bodily harm upon the said H J. W during the commission of the rape;"

Appellant urges that the court erred in failing to grant his motion to quash because the indictment alleges "serious bodily harm" rather than serious bodily injury as contained in V.T.C.A., Penal Code, Sec. 21.03(a)(1). The record in the instant cause reflects that the motion to quash did not contain such a complaint regarding substitution of the word harm for the word injury. Therefore, the motion at trial does not comport with the ground of error raised on appeal and presents nothing for review. Rovinsky v. State, Tex.Cr.App., 605 S.W.2d 578. This Court has held that the exact words of a statute need not be alleged in an indictment when there is no material difference between those words and the allegation actually used. Nixon v. State, Tex.Cr.App., 572 S.W.2d 699. Appellant's sixth ground of error is overruled.

In his seventh ground of error, appellant further contends the court erred in failing to grant his motion to quash the indictment. He maintains the indictment is fundamentally defective for failing to allege a culpable mental state. A culpable mental state is an essential element of the offense of aggravated rape. Ex Parte Perez, Tex.Cr.App., 612 S.W.2d 612. As quoted above, appellant's indictment alleges that he "knowingly and intentionally" committed the offense. We find that appellant's indictment properly alleges a culpable mental state. See Banks v. State, Tex.Cr.App., 586 S.W.2d 518. Appellant's seventh ground of error is without merit.

In his eighth ground of error, appellant contends the court erred in failing to enter written findings with regard to the admissibility of the complainant's identification testimony. The record reflects that the court held a hearing out of the presence of the jury with regard to the admissibility of such evidence. At the conclusion of that hearing, appellant stated "I want her to testify before the jury." We find that in view of such request, appellant is in no position to complain with regard to the court's failure to enter written findings of fact and conclusions of law with regard to the admissibility of the complainant's in-court identification testimony. See Lopez v. State, Tex.Cr.App., 468 S.W.2d 365; Spencer v. State, Tex.Civ.App., 466 S.W.2d 749. Appellant's eighth ground of error is without merit.

In his ninth ground of error, appellant contends the court erred in admitting his written statement into evidence. The statement contains an admission to the instant offense. Appellant maintains the statement was inadmissible because it was given after officers had ignored his request for counsel and promised him "mental help" if he would sign the statement.

Appellant filed a motion to suppress the statement and the court held a hearing thereon in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Art. 38.22, V.A.C.C.P. At the conclusion of that hearing, the court entered findings of fact and conclusions of law and ruled that the statement had been freely and voluntarily given after appellant had been warned of his rights.

Officer James LeFavers, of the Amarillo Police Department, testified that he interrogated appellant on June 30, 1977. Appellant was interrogated at the Potter County Sheriff's Office. LeFavers testified that he gave appellant his warnings and appellant indicated that he understood his rights. Appellant signed the statement concerning the instant offense at 4:00 a.m. on July 1, 1977. At no point during the interrogation did appellant ask for an attorney or indicate that he wanted the questioning to stop. Further, LeFavers testified that he did not promise appellant anything in return for signing the statement.

Appellant testified that he only signed the statement after LeFavers promised to get him "mental help." Further, appellant testified that he asked for an attorney just before he signed the statement.

The determination of whether a confession is voluntary must be based upon examination of the totality of the circumstances surrounding its acquisition. Berry v. State, Tex.Civ.App., 582 S.W.2d 463. Since the trial judge is the trier of the fact at a hearing on the voluntariness of a confession, he is the exclusive judge of credibility of witnesses as well as the weight to be afforded their testimony. Burks v. State, Tex.Civ.App., 583 S.W.2d 389. Appellate challenges to the trial court's determination of fact or application of law should be directed to whether the trial court abused its discretion. Sinegal v. State, Tex.Civ.App., 582 S.W.2d 135.

In the instant cause, the evidence raises question of fact concerning an alleged promise by LeFavers to seek "mental help" for appellant and LeFavers' alleged act in ignoring appellant's request for counsel. We find that under the totality of the circumstances, the evidence supports the trial court's finding that appellant's statement was freely and voluntarily given after he had been given his warnings. See McKittrick v. State, Tex.Cr.App., 541 S.W.2d 177. No error is shown in the court ad...