Pait v. State

• Decision Date: 13 November 1968
• Docket Number: No. 41505,41505
• Citation: 433 S.W.2d 702
• Parties: Charles PAIT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 702

433 S.W.2d 702

Charles PAIT, Appellant, v. The STATE of Texas, Appellee.

No. 41505.

Court of Criminal Appeals of Texas.

Nov. 13, 1968.

Clyde W. Woody, (on appeal only), Marian S. Rosen, (on appeal only), Charles C. Orsburn, Houston (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Ted Hirtz, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is aggravated assault with a prior conviction of an offense of the same nature alleged for enhancement under Article 61, Vernon's Ann.P.C.; the punishment, 6 months in jail and a fine of $1,000.

Appellant's first ground of error is that the verdict is contrary to the law and evidence in the case. We have examined this 342 page record and find the evidence amply sufficient to support the conviction.

The State's evidence shows that on August 22, 1966, after some difficulty between the two the day before, appellant apprehended the complaining witness, J. C. Hernandez, at pistol point, forcing a fellow employee of Hernandez's to tie his hands behind him. He then transported Hernandez in a van to his (appellant's) home in the City of Pasadena, Harris County, Texas. In the presence of his family appellant beat Hernandez about the head with a shotgun and his fist and kicked Hernandez in the ribs and in the back.

Testifying in his own behalf, appellant claimed Hernandez and fellow workers chased him to his home, and there he disarmed Hernandez. He denied ever striking Hernandez or that anyone in his presence hit Hernandez, and denied that Hernandez had blood streaming down his face when he left appellant's house.

Appellant also produced four other witnesses who substantiated his version of the events.

In rebuttal, among other things, the State introduced State's Exhibit #1, a colored photograph of the complainant's face and head showing that he had been beaten and had blood on his face and head. The officer who made the scene testified that he found Hernandez bleeding from the head when he arrived and there was blood on the grass. He identified State's Exhibit #1 as a fair and accurate representation of the condition of Hernandez's head when he arrived at the Pasadena police station where he had been taken directly from the scene of the alleged offense. The officer related that the picture was taken five or ten minutes after Hernandez's arrival and he was present when it was taken by another officer.

In his second ground of error, appellant contends the trial court erred in admitting State's Exhibit #1. It is clear that there was a disputed fact issue upon which the photograph tended to shed light, and for that reason alone the exhibit was admissible. Burns v. State, Tex.Cr.App., 388 S.W.2d 690, reversed on other grounds; Burns v. Beto (5th Cir.), 371 F.2d 598; Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112, 115, reversed on other grounds; 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; conformed 308 S.W.2d 519; Wilkerson v. State, 170 Tex.Cr.R. 525, 342 S.W.2d 431; Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255; See also Whaley v. State, Tex.Cr.App., 367 S.W.2d 703; Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178; Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314; Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880; Wooley v. State, 162 Tex.Cr.R. 378, 285 S.W.2d 218; Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740. Cf. Pitcock v. State, Tex.Cr.App., 420 S.W.2d 719, involving the introduction of a photograph showing injuries in an aggravated assault prosecution. Ground of error #2 is...