Kinnebrew v. State, 30596

• Decision Date: 29 April 1959
• Docket Number: No. 30596,30596
• Citation: 324 S.W.2d 554,168 Tex.Crim. 198
• Parties: Woodard Lee KINNEBREW, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 554

324 S.W.2d 554

168 Tex.Crim. 198

Woodard Lee KINNEBREW, Appellant, v. STATE of Texas, Appellee.

No. 30596.

Court of Criminal Appeals of Texas.

April 29, 1959.

[168 TEXCRIM 198] M. Gabriel Nahas, Jr., Houston, for appellant.

[168 TEXCRIM 199] Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., and Wallace C. Moore, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is aggravated assault by an adult male upon a female; the punishment, two years in jail and a fine of $1,000.

The evidence from the State's viewpoint shows that the seventeen year old girl named in the complaint and information was a prostitute who had entered into an agreement with appellant to enter a house of prostitution.

The girl had gone from Houston to Port Arthur with appellant's wife, in furtherance of the agreement, where they plied their trade for some four days and returned to Houston.

The girl testified that she was taken by appellant and his wife to a club where she met her mother; as she started to leave with her mother appellant said she belonged to him and she was forcibly put in an automobile and taken to appellant's apartment. Arriving there, appellant slapped her and knocked her down on the bed and put his hand on her throat and said: 'This will learn you. * * * You belong to me now and you take orders from me and no one else.' He then whipped her across the buttocks with a wire coat hanger leaving bruises that were visible four days later.

The two prostitutes returned to Port Arthur the next day and resumed their vocation, but the prosecuting witness got in touch with her mother by telephone and officers who had been notified by the mother took her into custody until her mother came for her.

Appellant did not testify.

Appellant complains of the evidence as to the agreement between appellant and the girl that she work in a house of prostitution, and her testimony that she did so.

The evidence was pertinent and tended to prove and explain the motive for the assault. Prior relationship between the accused and the assaulted party is ordinarily pertinent and admissible though it also tends to show a collateral offense. Bruno v. State, 163 Tex.Cr.R. 540, 295 S.W.2d 211.

[168 TEXCRIM 200] Complaint is made as to the girl's testimony that, on the same night and after appellant whipped her, appellant's wife assaulted her. She testified in this connection that appellant 'told her to take care of me. * * * so she took me in the bedroom, then she beat me in the face with her fist.'

We find no error in the admission of this portion of the transaction, appellant being a party thereto.

The remaining complaints relate to remarks of counsel for the State in the closing argument to the jury.

There are no bills of exception found in the record relating to jury argument approved by the trial judge. The trial judge has not been afforded the opportunity to 'require the bill of exception to reflect any reason whereby the argument complained of would not be error,' as provided in Art. 667 as amended in 1953. Art. 667, Vernon's Ann.C.C.P.

There has been filed in the trial court and in this Court a transcript of the closing argument for the State, showing objections made and motions to strike certain remarks and for mistrial, the rulings of the court and appellant's exceptions thereto. It is not approved by the trial judge.

The agreement signed by counsel for the State and appellant's counsel reads: 'It is hereby agreed that the foregoing 15 pages of typewritten matter contain a true and correct statement of the State's closing argument to the jury upon the trial.'

The question is raised as to whether the transcript of the closing argument so agreed to by counsel, timely filed, constitutes a separate statement of facts or an informal bill of exception to argument under Section 2 of Art. 759a, V.A.C.C.P. (1955 amendment) which reads, in part:

'(c) In like manner as hereinbefore provided in this Section, the defendant may reserve in the Statement of Facts, or by informal Bill of Exception, objection to argument of State's counsel, motion to withdraw testimony, or ruling of the trial court made during the trial of the case.'

Since the effective date of this amendment, this Court has not, to the writer's knowledge, reversed a conviction for improper jury argument without a bill of exception approved by the trial judge. We have, on occasion, stated that no effort was [168 TEXCRIM 201] made to reserve objection to argument in the statement of facts. Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Sandoval v. State, 162 Tex.Cr.R. 370, 285 S.W.2d 222; Bridges v. State, Tex.Cr.App., 316 S.W.2d 757.

In Owens v. State, Tex.Cr.App., 301 S.W.2d 653, the entire argument was before us and we considered the objections thereto and found no error. The opinion does not reveal but the record shows that the trial judge approved, as a bill of exception to the complained of remarks, a transcript of all arguments and...