Jackson v. State

• Decision Date: 27 March 1974
• Docket Number: No. 47884,47884
• Citation: 507 S.W.2d 231
• Parties: Willard Bishop JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 231

507 S.W.2d 231

Willard Bishop JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 47884.

Court of Criminal Appeals of Texas.

March 27, 1974.

Charles W. Tessmer and Ronald L. Goranson, Dallas (Percy Foreman, Dick DeGuerin, Houston, of counsel), for appellant.

Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is rape; the punishment, 25 years.

In view of our disposition of this appeal, only a discussion of ground of error seven is required.

The State witnesses Tally and Johnson testified that the appellant entered their apartment and there ravished both of them. They were both unequivocal in their identification of the appellant, both at the scene and at the police station where he was identified by each of them in the lineup. Each witness was strenuously cross examined, but not once did either of them vary nor was any evidence introduced from any other source indicating that their identification of appellant was impeached.

In rebuttal, over strenuous and proper bolstering objections, the State was permitted to call Officer Wagoner and elicit from him the fact that both Tally and Johnson had been shown numerous photographs of other Negro males of similar height and weight to the appellant and had never identified any of such photographs as being that of the appellant, and further to prove by him, over the same objection, that both Tally and Johnson identified the appellant at the lineup and later identified pictures of him shown to them at the police station.

In Acker v. State, Tex.Cr.App., 421 S.W.2d 398, we had occasion to trace the rule here applicable from Morton v. State, Tex.Cr.App., 71 S.W. 281, citing Satterwhite v. State, 77 Tex.Cr.R. 130, 177 S.W. 959; Ballew v. State, 161 Tex.Cr.R. 579, 279 S.W.2d 336, and Lyons v. State, Tex.Cr.App., 388 S.W.2d 950.

In Lyons, supra, we were confronted with a very similar situation. There we said:

'In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that upon the trial the eleven-year-old child named in the indictment identified the appellant as a man who had exposed his sexual parts to her on the date alleged. She further stated that after she had reported the incident to her parents she not only identified a picture of appellant but also identified the appellant, in person, at a police lineup as the man who had exposed himself to her.

'Testifying in his own behalf, appellant denied that he was the man. He also testified to an alibi and was corroborated by other testimony in support of the defense.

'Over appellant's timely objection, the state was permitted to show by the testimony of Officers Bynum and Brumit that the minor child did...