Pendell v. State

• Decision Date: 08 October 1952
• Docket Number: No. 25921,25921
• Citation: Pendell v. State, 158 Tex. Crim. 119, 253 S.W.2d 426 (Tex. Crim. App. 1952)
• Parties: PENDELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 426

253 S.W.2d 426

158 Tex.Crim. 119

PENDELL v. STATE.

No. 25921.

Court of Criminal Appeals of Texas.

Oct. 8, 1952.

Rehearing Denied Jan. 9, 1953.

E. T. Miller, Simpson, Clayton & Fullingim, Amarillo, for appellant.

H. C. Pipkin, Jr., Dist. Atty., Amarillo, George P. Blackburn, State's Atty., Austin, for the State.

WOODLEY, Commissioner.

The conviction is for the offense of indecent exposure as defined in Art. 535c, Vernon's Ann.P.C.; the punishment, four years in the penitentiary.

According to the State's testimony, appellant, during the noon hour on April 4, 1951, was driving a Ford car, blue in color, bearing license number BH-8584, in the vicinity of the Sam Houston Junior High School in Amarillo.

About 12:30 o'clock P.M., Misses Lynch, Campbell and Baker, three young girl students of the school, while on their way to the Walsh Food Store, stopped at the corner of Belleview and Line, where they saw appellant drive up, stop and then drive on.

Elizabeth Lynch and Anna Lee Campbell testified that they observed that appellant did not have any trousers on, and that he had his hands on his private parts which were exposed. The third girl positively identified appellant as the driver of the car and testified to statements made by her companions concerning his exposure, but said that she, herself, did not get near enough to see into the car.

A police officer testified that in the course of his investigation he asked appellant if he did it, and appellant replied, 'Well, there is no use lying, I did it.'

As against this testimony appellant denied his guilt and denied that he confessed to the officer. By his own testimony, as well as that of many other witnesses, he offered strong evidence in the nature of an alibi. Relatives, business associates and a customer testified to the effect that appellant was at his used car lot in a different part of Amarillo and that the car which he owned, answering the general description of the car in question, was not being driven by appellant at the time of the alleged offense.

The fact issues thus drawn were fairly submitted to the jury in the court's charge to which there appears to have been no objections offered.

We are not authorized to disturb the findings of the jury on the disputed facts, the State's evidence, if accepted by the jury, being sufficient to sustain the conviction.

Appellant, through able counsel, presents his claim of reversible error under ten propositions of law which will be disposed of in the order presented in appellant's brief.

The first proposition assigns fundamental error in the charge of the court.

The indictment alleged that appellant unlawfully and with lascivious intent knowingly and intentionally exposed his private parts, to-wit, his genital organs, to Elizabeth Lynch, a female under 16 years of age. Fundamental error is claimed in the court's charge wherein the jury was told that the defendant could be convicted if he exposed his private parts or genital organs to the child named. Our attention is directed to cases from other jurisdictions holding that the term 'private parts' meant and included sex organs of reproduction and their immediate vicinity as well. See State v. Nash, 83 N.H. 536, 145 A. 262, and Clark v. People, 224 Ill. 554, 79 N.E. 941. We are not impressed with the nice distinction pointed out by learned counsel for appellant between the terms 'private parts' and 'genital organs' as applied to the offense here charged. Either or both descriptive averments, as used in the statute, Art. 535c, Vernon's Ann.P.C. refer to and denote the genitals or the external genital procreative organs. Neither the term 'private parts' nor 'genital organs' should here be given the strict technical meaning referred to in the cases cited.

Appellant's second proposition sets forth that the State moved for a mistrial, alleging that a juror was disqualified by reason of having been convicted of a felony. No proof was offered in support of the motion, and it was overruled. It appears that counsel who prepared the appeal was not aware of the fact that the State's motion was abandoned because it was learned that the juror had received an unconditional pardon.

The remaining propositions relate to informal bills of exception to the admission of evidence as indexed and shown in the Q. & A. statement of facts.

Proposition 3 relates to Bill No. 1 (S. F. pp. 35, 36). Nancy Baker, the first witness, testified to having seen appellant driving a certain Ford car on April 4th. She did not testify as to any unlawful or improper act by appellant. She was cross-examined at length in regard to her identification of appellant as the driver of the car in question and about the occasion of her seeing him in a line-up at the police station some two weeks after April 4th. She was particularly asked if she had not said that the reason why she identified him was because he moved or twitched in the line. On redirect examination the witness was asked, 'Bearing in mind that some time has elapsed, I will ask you whether or not you communicated what you have been testifying to, to anyone at or about the time this thing happened.' An objection was offered, followed by inquiries by the court and explanations by the district attorney. The witness was then asked, 'Do you remember being asked by Mr. Miller how many times you talked to those Police Officers?' To which the witness answered, 'Yes, sir.' She was then asked, 'Did you talk to them shortly after this happened?' The court then overruled the objection and exception was reserved. It does not appear, however, that the question was answered or that the witness testified over objection that she communicated to or told anyone about the thing she testified she saw on the occasion. Reversible error is not shown by this bill.

Proposition 4 (Bill No. 2, S. F. p. 42) complains that later in her testimony the witness, Nancy Baker, was permitted over objection to testify that Elizabeth Lynch and Anna Lee Campbell, her two girl companions, and herself, right at the time appellant drove up in front of them, had the following to say: 'Anna Lee said, 'Look at that man,' and Elizabeth said, 'Yes, did you see that? and I says, 'No, I didn't see it' and Anna Lee said, 'Well, he didn't have any pants on from his waist down.'' The objection was, 'We object to anything said there.' To which the district attorney replied, 'That is res gestae and part of the transaction occurring on the spot and at the moment.' The trial judge thereupon overruled the objection upon the basis of it being admissible as a part of the transaction and under the res gestae rule. No error is shown by this bill.

As Proposition 5, appellant has briefed as ground for reversal what is referred to as a bill of exception indexed as Bill No. 3, shown at page 51 of the statement of facts. We find an objection to the question of the district attorney to have been sustained and the record shows no exception reserved. No error is shown by this so-called bill.

Proposition 6 (Bill No. 4, S.F. p. 69) relates to the following: On redirect examination, the witness, Anna Lee Campbell identified a certain statement as that which she had told appellant's counsel about and had read the day before. She was then asked, 'When did you make this statement under oath?' Appellant then objected 'to any further examination on that' and the court ruled that the district attorney had 'the right to ask whether she made the statement.' Appellant's counsel excepted to this ruling. The witness then testified...