Hoffman v. State, 48353

• Decision Date: 09 October 1974
• Docket Number: No. 48353,48353
• Citation: 514 S.W.2d 248
• Parties: Ralph J. HOFFMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 248

514 S.W.2d 248

Ralph J. HOFFMAN, Appellant, v. The STATE of Texas, Appellee.

No. 48353.

Court of Criminal Appeals of Texas.

Oct. 9, 1974.

James F. Gardner and J. Russell Graham, San Antonio, for appellant.

Ted Butler, Dist. Atty. and Fred Rodriguez and Douglas C. Young, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant was convicted of oral sodomy. His punishment was assessed by the court at six (6) years' confinement in the Texas Department of Corrections following a guilty verdict.

The sufficiency of the evidence is not challenged. The record reflects that the fourteen year old prosecutrix and her nineteen year old boyfriend were parked in his car at night at Woodlawn Lake in San Antonio on August 10, 1971. While kissing and 'touching' each other, the boyfriend removed her dress and the prosecutrix removed the remainder of her clothing. Appellant, a park ranger, approached the car and requested identification. He instructed the boyfriend to remain in his car, and appellant then escorted the prosecutrix, with only her dress draped over her, to his vehicle. Contrary to his supervisor's stated policy, appellant required the prosecutrix to enter his vehicle. He informed the prosecutrix that he was going to have to put her boyfriend in jail and take her to the juvenile home unless she wanted 'to take the easy way out.' The appellant then went to the boyfriend's car and handcuffed the boyfriend and then returned to his vehicle. There, he forced the prosecutrix to commit an act of oral sodomy upon him. Shortly after they were released, the boyfriend and the prosecutrix reported the event to his father and her mother and the police were called.

Testifying in his own behalf, appellant admitted the prosecutrix, with her dress draped over her body, was told to sit in his car for the purpose of an interview. He denied handcuffing the boyfriend or that an act of oral sodomy took place.

In his first two grounds of error appellant contends that the trial court committed error in refusing to admit into evidence for the purpose of impeachment the transcript of the examining trial testimony containing prior inconsistent statements made by the prosecutrix and her boyfriend.

On cross-examination of the prosecutrix and the boyfriend it was elicited that their 'touching' of each other consisted of the prosecutrix holding the boyfriend's penis, while he was feeling her breast with one hand and 'fingering' her between her legs with the other hand. The prosecutrix admitted that she had testified at the examining trial all she and her boyfriend were doing was kissing; however, when she was asked if she remembered being asked at the examining trial certain quoted questions and giving certain quoted answers that she did not have her boyfriend's penis in her hand, etc., and that her boyfriend did not have his hand between her legs, she testified she did not remember. On redirect and recross-examination she admitted she was nervous during the examining trial, as she did not know whether her mother was present, and did know that the boyfriend's mother was in the courtroom.

Later, the court reporter who took and transcribed the examining trial proceedings was called as a witness and authenticated the testimony given by the prosecutrix and her boyfriend. Appellant then offered into evidence portions of the examining trial testimony ¹ by these witnesses for the purpose of impeachment, including the questions and answers noted heretofore wherein he claimed the boyfriend's and the prosecutrix's testimony at the examining trial was at variance with their trial testimony. Upon objection by the State that the proffered testimony had not been authenticated in accordance with Article 16.09, Vernon's Ann.C.C.P., etc., the trial court excluded the proffered testimony, permitted the appellant to perfect his bill of exception, making the entire examining trial testimony a part of the appellate record.

Turning to the ground of error relating to the boyfriend's testimony, we do not find the same to be briefed in accordance with Article 40.09, Sec. 9, Vernon's Ann.C.C.P. The appellant does not call our attention to which prior inconsistent statements made at the examining trial he claims should have been admitted, etc., and of which he now complains on appeal. This court should not have to examine an entire appellate record and then speculate as to appellant's complaints on appeal.

Further, it is observed that when appellant offered the examining trial testimony there was no showing of compliance with Article 16.09, Vernon's Ann.C.C.P. ²

Nevertheless, we have examined the boyfriend's trial testimony and find that such testimony was basically consistent with his examining trial testimony, particularly with regard to the sexual activity he was engaged in with the prosecutrix prior to the appellant's arrival on the scene. In two instances the boyfriend readily agreed on cross-examination that his examining trial testimony was 'fresher' than his subsequent trial testimony and no doubt correct, thus performing the act of impeachment upon himself and eliminating the necessity of introducing the inconsistent examining trial testimony. See Wood v. State, 511 S.W.2d 37 (Tex.Cr.App. 1974).

The same is true with regard to the prosecutrix's testimony as to whether appellant forced her to open her mouth. On direct examination she indicated appellant had forced her mouth open prior to the alleged act. On cross-examination she was confronted with her examining trial testimony as follows:

'Q. . . . You remember the question: 'Well, how did he force you to open your mouth? Did he put his hand on your jaw and force your mouth open or what?' Answer: 'No.' Question: 'So you opened your own mouth, then, didn't you?' Answer: 'Yes.'

Do you remember testifying to that?

'A. I don't know.

'Q. You don't remember?

'A. Well, if he was--well, he had me like that and was sticking it, to open it.

'Q. Why?

'A. Because he threatened me.

'Q. But you opened your mouth?

'A. In a way.

'Q. In a way. So you did open your mouth yourself?

'A. Well, if it was my mouth, it was open.'

The prosecutrix thus agreed with her prior testimony when confronted with it. admitting in effect it was inconsistent with her trial testimony. Under these circumstances she had therefore performed the act of impeachment on herself. The examining trial testimony then in this regard should not have been admitted. Wood v. State, supra.

An examination of the record reveals that many of appellant's complaints relating to appellant's attempts to impeach the prosecutrix were upon collateral issues. While great latitude is allowed in cross-examination in attempts to discredit the witness, the witness may not be cross-examined as to any fact that is collateral and irrelevant to the issue merely for the purpose of laying a predicate for the introduction of independent evidence to impeach him by a showing that, as to the matter embraced in the question, the witness has answered falsely. Corpus v. State, 463 S.W.2d 4 (Tex.Cr.App. 1971); McCormick and Ray, Texas Law of Evidence (2d Edition), Sec. 683, p. 526; 62 Tex.Jur.2d, Witnesses, Sec. 224. ³

It would appear that if the proper predicate had been laid in accordance with Article 16.09, supra, the trial court should have permitted impeachment of the prosecutrix by use of the examining trial testimony as to the sexual activity occurring prior to appellant's arrival after she stated she didn't remember her examining trial testimony quoted to her. We cannot conclude, however, that if there were error in refusing to admit the examining trial testimony it was of a reversible nature. Her trial testimony described in some detail the sexual activity, while her prior testimony denied she was engaged in doing any more than 'kissing.' She was fully cross-examined in the jury's presence by appellant's counsel using the examining trial record. The jury was obviously aware of the claimed inconsistencies in her testimony, and she attempted to explain her earlier testimony on the basis of her nervousness and the possible presence of her mother and the presence of the boyfriend's mother.

In grounds of error number three through ten the appellant contends that the trial court committed error in failing to grant various motions for discovery. No error is found. The discovery statute, Article 39.14, Vernon's Ann.C.C.P., is itself a limited one and this court has repeatedly held that it is necessary for the defendant when making a motion for discovery to show the statutory requisites of good cause, materiality, and possession by the State. Feehery v. State, 480 S.W.2d 649 (Tex.Cr.App. 1972); Smith v. State, 468 S.W.2d 828 (Tex.Cr.App. 1971); Smith v. State, 455 S.W.2d 748 (Tex.Cr.App. 1970); Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App. 1967). Further, there must be something in the record to show at least the existence of the items requested. Solomon v. State, 467 S.W.2d 422 (Tex.Cr.App. 1971); Hinkle v. State, 442 S.W.2d 728 (Tex.Cr.App. 1969). Appellant's pre-trial request for 'statements of each witness' was properly denied since Article 39.14, Vernon's Ann.C.C.P., specifically exempts such items from discovery as 'work product.' The request for grand jury testimony was properly denied as appellant failed to show a particularized need for such testimony. Williams v. State, 493 S.W.2d 863 (Tex.Cr.App. 1973); Garcia v. State, 495 S.W.2d 257 (Tex.Cr.App. 1973). All other motions for discovery are too broad to be effective. Grounds of error number three through number ten are overruled.

In grounds of error number eleven and twelve appellant contends that the trial court committed error in failing to allow his attorney to be furnished with a copy of the statements given to the police by both the prosecutrix and her boyfriend so that such statements could be used for...