Perkins v. State
| Decision Date | 13 November 1968 |
| Docket Number | No. 41537,41537 |
| Citation | 433 S.W.2d 712 |
| Parties | Phillip PERKINS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ray & Kirkpatrick, by C. L. Ray, Jr., Marshall, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder without malice; the punishment, five years in the Texas Department of Corrections.
The indictment charged the appellant with the murder of Edgar Frazier Willis while engaged in an act of assault with intent to commit murder upon John Henry Tanghlyn. See Article 42, Vernon's Ann.P.C.
In his fifth ground of error appellant contends the State was permitted to improperly impeach its own witness.
After both sides had rested, the court in effect permitted the State to re-open its case. The district attorney then called the appellant's brother, Willie Perkins, as a State's witness, and immediately established that he had testified at a previous habeas corpus hearing in connection with the case. The district attorney's purpose in calling such witness was revealed early in the interrogation when the court reminded him that this was not rebuttal testimony as he had previously assured the court and he replied in part:
Thereafter, without the witness stating facts injurious to the State, the district attorney was permitted to impeach the witness with his previous habeas corpus testimony when he failed to testify as expected or to remember facts favorable to the State. At the conclusion of such testimony the transcription of the habeas corpus proceedings was introduced into evidence to impeach and contradict his testimony. Such testimony was injurious to the appellant and bolstered the State's case.
Only recently in Wall v. State, Tex.Cr.App., 417 S.W.2d 59, we said:
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Cherb v. State
...its own witness, nevertheless, this Court has held that the party must show surprise as a predicate for so doing. Perkins v. State, 433 S.W.2d 712 (Tex.Cr.App., 1968); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App., 1967); Solomon v. State, 162 Tex.Cr.R. 374, 285 S.W.2d 755 In this case, the wit......
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Goodman v. State
...is decidedly adverse on a vital issue. Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). See also Brown v. State, supra; Perkins v. State, 433 S.W.2d 712 (Tex.Cr.App.1968); Hollingsworth v. State, 78 Tex.Cr.R. 489, 182 S.W. 465 (1916); Perrett v. State, 75 Tex.Cr.R. 94, 170 S.W. 316 If the wi......
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Norwood v. State
...witness, and tell the jury that she was a hostile witness, when there was no evidence she was hostile.' Appellant relies on Perkins v. State, 433 S.W.2d 712, where this Court said that 'the district attorney at no time despite Repeated objections, claimed surprise nor laid any predicate to ......
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Lewis v. State
...1 Branch's Ann.P.C.2d, § 186 at 195-197 (2d ed. 1956) and see Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972); Perkins v. State, 433 S.W.2d 712 (Tex.Cr.App.1968); Wall v. State, 417 S.W.2d 59 (1967); Crandall v. State, 170 Tex.Cr.R. 229, 340 S.W.2d 36 (1960) and Mims v. State, 159 Tex.Cr......