De La Rosa v. State, 29891
| Decision Date | 25 June 1958 |
| Docket Number | No. 29891,29891 |
| Citation | 317 S.W.2d 544,167 Tex.Crim. 28 |
| Parties | Neftaly DE LA ROSA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[167 TEXCRIM 29] Clifton H. Tupper, Francis G. Culhane, San Angelo, for appellant.
Justin A. Kever, Dist. Atty., San Angelo, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is rape by force; the punishment, forty-five years.
The evidence shows that appellant and three other young men forced the fifteen year old prosecutrix, whom they had never seen before, into a car, drove to an isolated spot and each in turn ravished and had carnal knowledge of her despite her resistance, three holding the girl while the fourth accomplished an act of intercourse with her against her will.
Reversal is sought upon two propositions, both relating to the overruling of appellant's motion for new trial.
The first proposition is that the jury considered unsworn testimony relating to parole and clemency.
Shortly after retiring, the jury sent a note to the trial judge which is set out in the court's answer in writing given to the jury in open court:
'Gentlemen of the Jury:
'In reply to your note 'Quickest possible time defendant would be eligible for parole under the following sentences?
[167 TEXCRIM 30] 1. Life _____
2. 99 years _____
3. 75 years _____
4. 50 years _____
5. 20 years _____'
you are instructed that the Court can not give you any information concerning the matters indicated; and further, you are instructed that in your deliberations in this case you will adhere strictly to the Charge heretofore given you and be governed thereby.'
The evidence heard on the motion for new trial, if not undisputed, was such as to supports a finding by the trial judge:
1. That the jurors voted guilt unanimously.
2. Thereafter some of the jurors questioned the length of time that defendant would be in the penitentiary if sentenced to a number of years and the note was sent to the judge.
3. None of the jurors professed to know the provisions of the law, but knew that it was common practice for prisoners to be released from the penitentiary prior to the expiration of the full calendar time which the jury assessed.
4. After being instructed by the court in answer to their inquiry, the matter was not further discussed.
Under the facts set out, we find no ground for reversal. Walker v. State, 150 Tex.Cr.R. 421, 201 S.W.2d 823; King v. State, 141 Tex.Cr.R. 257, 148 S.W.2d 199; Plasentilla v. State, Tex.Cr.App., 216 S.W.2d 187; Simmons v. State, 156 Tex.Cr.R. 153, 239 S.W.2d 625; Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663; Napier v. State, Tex.Cr.App., 314 S.W.2d 102.
The second proposition advanced by appellant is that the jury discussed and considered appellant's failure to testify.
The affidavit of Juror Ben O'Neal attached to appellant's motion for new trial states 'during the course of our deliberations,[167 TEXCRIM 31] it was mentioned that he did not take the witness stand in his own behalf.'
We do not think that this was a sufficient averment to raise the issue of art. 710, V.A.C.C.P. being violated. If so, the testimony and affidavits of other jurors were to the effect that after all had voted guilty there was a casual mention of the fact that the defendant had not testified and the foreman immediately stated that such could not be considered for any purpose and it was not mentioned again.
Such a reference to appellant's failure to testify pleaded and shown does not establish that the jury considered appellant's failure to testify as a circumstance against him, or constitute ground for reversal. Powers v. State, 69 Tex.Cr.R. 494, 154 S.W. 1020; Dyer v. State, 96 Tex.Cr.R. 301, 254 S.W. 902; Low v. State, 156 Tex.Cr.R. 34, 238 S.W.2d 769; Branch's Ann.P.C., 2d Ed., Sec. 589.
The evidence is sufficient to sustain the conviction and we find no reversible error.
The judgment is affirmed.
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Harris v. State
...it is not every mention of parole which calls for a reversal. Henderson v. State, 169 Tex.Cr.R. 206, 332 S.W.2d 705; De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544. There is no showing that any further discussion followed receipt of the judge's answer, or that at any time during deli......
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