Holbert v. State

• Decision Date: 08 July 1970
• Docket Number: No. 42911,42911
• Parties: Charles Jerry HOLBERT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 286

457 S.W.2d 286

Charles Jerry HOLBERT, Appellant, v. The STATE of Texas, Appellee.

No. 42911.

Court of Criminal Appeals of Texas.

July 8, 1970.

As Amended on Denial of Rehearing Aug. 21, 1970.

Don Metcalfe, Dallas, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott, Harry J. Schulz, Jr., and W. T. Westmoreland, Jr., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for rape; the punishment, life.

The appellant, Charles Jerry Holbert, and Elven Gene Bartley, Marion Louis Goodley, Willie Earl Lipscomb, Melvin Gene Nash, and Herschel Renard Pratt, were jointly indicted for the offense of rape. Following the severance of Herschel Renard Pratt, the appellant and the other named four defendants were jointly tried and found guilty. The trial court granted Lipscomb and Nash new trials.

This is a companion case to Goodley v. State, Tex.Cr.App., 457 S.W.2d 294, and Bartley v. State, Tex.Cr.App., 457 S.W.2d 297, this day decided.

The appellant contends that he was denied the right of confrontation of witnesses against him when the trial court refused to permit him to prove on cross-examination of his co-defendant Bartley that he had a prior felony conviction and that such denial was error.

At the beginning of the trial, the court ruled that 'No mention of prior convictions be made.' This was known to the defendants at the time and they made no complaint until after the state had rested its case and while Bartley was testifying in his own behalf. It was shown in the absence of the jury that Bartley had been convicted of assault with intent to rob. Bartley was the only one of the five codefendants to testify in his own behalf. The sole issue raised by his testimony was that of alibi. He testified that he was at home at the time of the alleged offense, and he gave no testimony incriminating any of the other four defendants. No affirmative defensive charge was given in behalf of Holbert. There was no request for or objection to the failure to give such a charge. It appears that proof of the prior conviction against appellant's associate and co-defendant Bartley would not be of any benefit to the appellant but would tend to discredit and prejudice him before the jury. No reversible error is presented.

It is contended that: 'The court erred in allowing impeachment by the state of its own witness, Herschel Pratt.'

In his brief the appellant urges that:

'By continuous questioning of Pratt and reference to prior statements, the prosecutor was able to convey to the jury the following prior statements of Pratt, all of which Pratt denied:

"* * * Nash and Holbert left us and walked to that car * * *' (referring to the victim's car)

"* * * One of the two said they were going to rob the man * * *' (referring to defendant as one of the two)

"* * * Nash had what looked like a gun * * *'

"* * * Two of the group got in the back with the man and woman * * *' (the man and woman being the victims)

"* * * that the six included Holbert * * *'

"* * * Nash had what appeared to be a gun * * *'

'It must be remembered that Pratt never testified that defendant committed the offense and that the only incriminatory statements as to defendant came in the aforementioned questions, and not in any answers of Pratt.'

When Pratt would not verify certain facts which state's counsel asserted that Pratt had related to him during conversations pertaining to the case, the jury was retired, the state plead surprise, and state's counsel testified in support of his contention. The court then ruled Pratt was a hostile witness and permitted state's counsel to examine Pratt before the jury using leading questions in accordance with the evidence he had shown as surprise.

When his examination resumed, Pratt testified that after he and the five named defendants had left a skating rink together in a car, he never saw Nash and Holbert leave it and go to a car in a park because he was asleep; that he never heard Holbert and Nash say they were going to rob the man but he did hear someone say they were going to rob but he did not say who it was because he did not know. He denied seeing Nash with a gun but stated that he saw a man at the other car with his hands on the top of the car and later in a secluded area he heard three or four shots after he had seen a woman and five men go into some woods; and in a short time he, Holbert (appellant), Lipscomb, Nash and Bartley rode away from the scene in a car.

It is within the sound discretion of the trial court to permit the counsel for the state on direct examination to ask leading questions to a hostile witness or to refresh a witness's memory. 62 Tex.Jur.2d Witnesses, Sec. 148 and 150; 1 Branch's 2d Ann.P.C. Sec. 180 and 182, p. 188.

To constitute the impeachment of which the appellant complains, it would be necessary for the state to support the predicate laid by introducing evidence before the jury as to the prior statements of the witness Pratt. In the absence of such proof Pratt's denial of the making of such statements was not contradicted. Therefore, the matter of his impeachment is not presented. Secrist v. State, 131 Tex.Cr.R. 182, 97 S.W.2d 196; Robbins v. State, 162 Tex.Cr.R. 107, 282 S.W.2d 711; Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106; Bates v. State, Tex.Cr.App., 409 S.W.2d 860.

It is concluded that the trial court under the facts presented did not err in permitting the state to examine the witness Pratt as shown.

The third ground of error is that the trial court denied the appellant's motion for a severance.

This Court has held that before a motion for severance is granted as a matter of right the accused must show that a codefendant has an admissible prior conviction while the accused (movant) does not. Johnson v. State, Tex.Cr.App., 449 S.W.2d 237; Robinson v. State, Tex.Cr.App., 449 S.W.2d 239; and Thornton v. State, Tex.Cr.app., 451 S.W.2d 898. The third ground of error is overruled.

The appellant contends that: 'The court erred in allowing the prosecutor in jury argument to prejudicially refer to defendant as a 'murderer."

This contention arose during the following argument of state's counsel:

'She was laid nude on the gound. Her purse was crudely placed uner the lower portion of her body to elevate her and five times she told you that her sexual organs were penetrated by the sexual organs of these murderers, rapists and robbers--

'Mr. Metcalf: Your Honor, we will object to the use of the words 'murderers and robbers' as it applies to the Defendant Jerry Holbert and all others, such as is outside of the testimony and has vast implications. We feel it is prejudicial and no facts in evidence--

'The Court: Objection overruled.

'Mr. Metcalf: Note our exception, please.'

The prosecutrix testified that after the car was stopped in a secluded area on a gravel road they pulled her out on one side and took Robert Deegels out on the other side; that three men went with her and one of the two who went with Robert had the pistol; that after going a short distance and while about ten feet from Robert, but could not see him, she heard two shots; that one of the two men with Robert then came to where she was and said, 'He shot the m_ _ f_ _ in the head'; and that after the men had assaulted her and left in her car, she dressed and went to Robert but could not arouse him though he appeared to be alive. He died that day.

It is concluded that from all the facts and circumstances in evidence, the use of the word mentioned did not constitute reversible error. Marshall v. State, 104 Tex.Cr.R. 619, 286 S.W. 214; Jackson v. State, 118 Tex.Cr.R. 443, 42 S.W.2d 433; Doswell v. State, 158 Tex.Cr.R. 447, 256 S.W.2d 416; Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513.

The fourth ground of error is overruled.

The fifth ground of error is that: 'The court erred in failing to grant a mistrial when the attorney (Caperton) for co-defendant, Marion Goodley, commented on the failure of defendant (Holbert) to testify, thereby violating defendant's right to remain silent.'

At the punishment hearing before the jury, counsel Caperton, arguing for co-defendant Goodley said that he would like to be a special prosecutor in the murder or robbery case and be able to call 'them' (the two robbers and two murderers) to the stand and get them to tell what Goodley had to do with it.

The objection that Caperton commented on the defendant's failure to testify was sustained and the jury was instructed not to consider Caperton's remarks against any of the defendants, and the motion for mistrial was overruled.

The name of the appellant and the offense in this case were not called. In light of the court's action in sustaining the objection and instructing the jury not to consider the remarks, it is concluded that no reversible error is shown. Grantom v. State, Tex.Cr.App., 415 S.W.2d 664. The fifth ground of error is overruled.

In his sixth ground of error the appellant contends, 'The court erred in allowing the prosecutor to comment on the defendant's failure to testify by stating that he had failed to show himself worthy of concern, thereby violating the defendant's right to remain silent.'

During the jury argument on punishment, the prosecutor argued as follows: 'I am asking you to not let your hearts out in any concern for these five men because none of them have shown themselves to be worthy of concern.'

Appellant contends that the above jury argument is in violation of Article 38.08, Vernon's Ann.C.C.P. This Court has held that for jury argumment to violate Article 38.08, supra, 'the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant's failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion thereto.' Suber v. State, Tex.Cr.App., 440 S.W.2d 293; Harrington v....