McInturf v. State
Decision Date | 22 December 1976 |
Docket Number | No. 51416,51416 |
Citation | 544 S.W.2d 417 |
Parties | Danny McINTURF, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Prior to his recent retirement Judge Thurman M. Gupton prepared the following opinion for the court. We now adopt it as the opinion of the court.
'The offense is rape under Art. 1183, V.A.P.C.; the punishment, ten years.
trailer, exhibited a knife, made verbal threats, and committed acts of oral sodomy and intercourse. The prosecutrix identified appellant in court as the assailant based on a comparison of the sound, quality and tone of appellant's voice. The voice identification was the only method by which the prosecutrix was able to identify the appellant.
' The prosecutrix testified that she was awakened by a man wearing a hose over his face. She stated that her vision uncorrected was 20--400 and she was not wearing her eye glasses. The man wrapped a bath towel around her head and secured it with a tape measure. The blindfold was not removed until after the man left her trailer approximately three hours later. During the last half hour the man spoke extensively about himself. The prosecutrix thus had ample opportunity to observe the character of the man's voice. In the presence of the jury she stated that appellant's voice was the voice of the man in her trailer. She further stated that on one other occasion she had an opportunity to hear appellant's voice, but the details of that occasion were not admitted into evidence. Cf. Ramon v. State, (162 Tex.Cr.R. 365,) 285 S.W.2d 225. We find this sufficient to show a basis for comparison of the assailant's voice and appellant's voice, even though the prosecutrix acquired some additional knowledge of the appellant's voice after the alleged rape. Locke v. State, (Tex.Cr.App.,) 453 S.W.2d 484.
'The prosecutrix' testimony concerning the voice identification was very strong and was in no way impeached. Cf. Porter v. State, (Tex.Cr.App.,) 50 S.W. 380. However, there was no physical evidence to connect appellant with the offense. No fingerprints were found because before the man left prosecutrix' trailer he dusted his fingerprints off everything he might have touched. The trial court was therefore not required to charge the jury on the law of circumstantial evidence if the voice identification by the prosecutrix constituted direct evidence. Helms v. State, (Tex.Cr.App.,) 493 S.W.2d 227.
'In Givens v. State, (35 Tex.Cr.R. 563,) 34 S.W. 626, this Court held a charge on circumstantial evidence was not required where the appellant was identified by the complaining witness on the basis of his voice. He was also identified by another witness as the person who fired the shot which was the basis of the charge of assault with intent to murder.
'In Welch v. State, (143 Tex.Cr.R. 529,) 154 S.W.2d 248, cert. den. 315 U.S. 808, 62 S.Ct. 797, 86 L.Ed. 1207, the accused was charged with kidnapping for extortion and was identified on the basis of his voice and a black hat found in appellant's possession which was identified as the one worn by the kidnapper. Citing Givens, this Court held that the case was not one requiring a charge on circumstantial evidence.
'In both Givens and Welch, the voice identification was made by a person who had known the appellant for several years.
'In Porter, a conviction for burglary with intent to commit rape was reversed because the evidence was insufficient to establish the identity of appellant, which was proven solely by his voice and by certain tracks. The prosecutrix in that case was not familiar with appellant's voice and her recognition of appellant's voice was contradicted by other witnesses. The Court stated:
"But we do not believe, as stated before, that the identity of appellant is established with that degree of certainty in accordance with the Rules of circumstantial evidence . . .' (Emphasis added)
'In two other cases, Waggoner v. State, (Tex.Cr.App.,) 98 S.W. 255, and Holland v. State, (56 Tex.Cr.R. 440,) 120 S.W. 470, this Court has treated voice identification as opinion evidence.
'In Waggoner a witness identified appellant by his voice, stating 'he could not be sure whose voice it was, but that it 'went mightily like Joe Waggoner's." This Court said:
"This might be in a certain sense in the nature of an opinion, but, as we understand, this character of evidence is admissible.'
'In Holland a witness testified the voice he heard quarreling with the deceased was the same voice he heard later.
'This Court stated:
"Certainly a witness can given his opinion as to whether a voice he hears is the same voice he heard a few moments before.'
'Other courts that have passed upon the issue at hand have held that voice identification is direct evidence. In Lindsey v. State, 279 So.2d 913, 914 (Miss.1973), the Supreme Court of Mississippi reaffirmed its earlier holdings, stating:
'In Martin v. State, (100 Fla. 16,) 129 So. 112, 115 (Fla.1930), the Supreme Court of Florida stated the rule as follows:
"This court has held that testimony is admissible to establish the identity of an accused even by one having heard his voice, and such evidence is not to be considered as circumstantial, but as direct and positive proof of a fact, and its probative value is a question for the jury.'
'See also Alea v. State, 265 So.2d 96 (Fla.Dist.Ct.App.1972).
'In State v. Carcerano, (238 Or. 208,) 390 P.2d 923 (1964), cert. den. 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807, the Supreme Court of Oregon held testimony identifying defendant through his physical features and more particularly through his voice was competent testimony and that its weight was for the jury to determine. That court also said:
' It appears the general rule among other jurisdictions, as shown in 70 A.L.R.2d 1011, is that voice identification is direct, not circumstantial, evidence. The difference between recognition of a familiar voice and a voice heard only at the time of, and subsequent to, the offense goes to the weight and probative value of the voice identification testimony and, as such, is a fact for the determination of the trier of the facts.
' We hold the voice identification of the prosecutrix constituted direct evidence, thereby rendering a charge on circumstantial evidence unnecessary. To the extent that Porter, Holland, and Waggoner are in conflict with this holding, they are expressly overruled.
'Grounds of error one and two are overruled.
' Appellant's third ground of error asserts a violation of appellant's constitutional right against self-incrimination when appellant was compelled to speak in the presence of the prosecutrix. The record shows that appellant, over objection, stated his name, age, address and educational level in front of the prosecutrix...
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