Lary v. State
| Citation | 475 S.W.2d 248 |
| Decision Date | 07 December 1971 |
| Docket Number | No. 44367,44367 |
| Parties | John Kermit LARY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
R. L. Middleton, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of robbery by assault. The punishment was assessed by a jury at 12 years.
We affirm.
The record reflects that on the night of October 6, 1969, the complaining witness, John R. Coggin, was accosted on a downtown Dallas street by three persons, one of whom was the appellant. He was attacked, thrown to the ground, and robbed of his billfold and approximately $75.00. He testified that the appellant was cursing and kicking him when a Dallas police officer approached and arrested the appellant. The other two robbers fled the scene.
Officer E. R. Bailey testified that he saw Coggin being attacked and arrested the appellant.
Officer T. O. Trotman, of the Dallas Police Department, testified that he arrived on the scene as Officer Bailey was effecting the arrest but did not see the attack.
Appellant, testifying in his own behalf, admitted struggling with the complaining witness, but contended that he did this in self-defense. He stated that on the night of the offense he was on his way to catch a bus, at the Continental Bus Station in downtown Dallas, when he noticed several teenagers run past him; that he was then gradded by the complaining witness who claimed he had been robbed and the struggle ensued. He stated that in his opinion the complaining witness was intoxicated.
By his first ground of error appellant contends 'It was reversible error for the trial judge to allow the state's attorney to turn over to the attorney for the defendant, after the state had rested its case rather than immediately after Officer E. R. Bailey testified, the grand jury testimony of Officer E. R. Bailey, a witness for the state.'
The record reflects that pursuant to appellant's motion for discovery the trial court entered an order that he '. . . may have grand jury testimony of any witness at time such witness testifies.' The grand jury transcript was furnished to counsel for appellant after the state rested its case in chief during the guilt-innocence stage of the trial. It was not until after the state closed that appellant made the request for such testimony. 1
This court, in Garcia v. State, Tex.Cr.App., 454 S.W.2d 400, at page 403, stated:
'It has been generally recognized that an accused is not ordinarily entitled to the inspection of grand jury minutes or testimony for the purpose of ascertaining evidence in the hands of the prosecution, or for the purposes of discovery in general. And this is true whether the request is made before or during trial. Hanes v. State, 170 Tex.Cr.R. 394, 341 S.W.2d 428, 20 A.L.R.3d 59, 61. See also Goode v. State, 57 Tex.Cr.R. 220, 123 S.W. 597; Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611, 618; Bryant v. State, Tex.Cr.App., 397 S.W.2d 445, cert. den. 385 U.S. 858, 87 S.Ct. 106, 17 L.Ed.2d 84; Young v. State, Tex.Cr.App., 398 S.W.2d 572.
'The denial of the grand jury testimony has been upheld where there is no showing in the record of any inconsistencies between the witness' trial testimony and his testimony before the grand jury. Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. den., 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1524.
In the instant case, the grand jury testimony was produced and furnished appellant. Officer Bailey was recalled by appellant and questioned...
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Tibbetts v. State
...Smith v. State, 455 S.W.2d 748 (Tex.Cr.App.1970); Hicks v. State, 482 S.W.2d 186 (Tex.Cr.App.1972), and Lary v. State, 475 S.W.2d 248 (Tex.Cr.App.1972). We know of no authority, statutory or otherwise, which would require the recording of such The court did not err in overruling the motion ......
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...aid and assistance of counsel in the trial court. We have examined the record and conclude that appellant was adequately represented." 475 S.W.2d 248. Thereafter, Petitioner began serving his sentence in the Texas penitentiary. Seven years later he filed the above-mentioned petition for a w......
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Polk v. State, 44617
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