Smith v. State, 41697

Decision Date18 December 1968
Docket NumberNo. 41697,41697
PartiesCharles C. SMITH, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Marvin O. Teague, Houston, on appeal only, for appellant.

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

OPINION

MORRISON, Judge.

The offense is Rape; the punishment, Death.

Appellant's first ground of error is his contention that the evidence is insufficient to support the conviction. Great stress is placed upon the fact that the attacker forced the prosecutrix to cover her face and did not permit her to look at him. We have examined the record with care and find several instances in which the prosecutrix testified that she parted her fingers and viewed her assailant or saw him through a sheer cloth which he required her to place over her head, thus enabling her to positively identify appellant. It is clearly established that the prosecutrix reported immediately to her family physician and he testified that he discovered a 2 1/2 inch tear inside her vagina which was consistent with a forced entry by an oversized penis. We find the evidence sufficient to support the conviction.

Appellant's grounds of error #2 and #6 relate to the testimony of a police chemist to the comparison of a pubic hair found in a bed sheet taken from the prosecutrix's house and one given him by appellant 1 in the crime laboratory shortly after his apprehension and before appellant was taken before a magistrate on October 14, 1965, the day of appellant's arrest. We shall also discuss the lineup conducted at the police building which also took place prior to appellant's being warned by the magistrate. It is agreed that appellant was not warned of his right to counsel prior to these two events taking place. None of the holdings of the Supreme Court of the United States subsequent to such events controls the disposition of these grounds of error. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Art 15.17, Vernon's Ann.C.C.P., was not in effect at the time of appellant's arrest. This disposes of that portion of appellant's second ground of error relating to the lineup.

Trial was had May 11, 1966, after the effective date of the 1965 Code. The trial court had only the holdings of this Court on the question to guide him. On February 9, 1966, prior to appellant's trial, this Court had told all trial judges in our opinion in Lugo v. State, Tex.Cr.App., 398 S.W.2d 769, that the old confession statute, Art. 727, V.A.C.C.P., in effect at the time of appellant's arrest, did not apply to the taking of a blood test. Only recently in Burns v. State, Tex.Cr.App., 432 S.W.2d 93, this Court had occasion to pass upon the question of the admissibility of 'exemplars' of handwriting specimens. We affirmed the conviction relying on the holding of the Supreme Court of the United States in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. This disposes of that portion of appellant's ground of error as it relates to the pubic hair.

Appellant testified in the absence of the jury that he was warned by Detective Newman prior to the lineup and the taking of the pubic hair that anything he said to him (Detective Newman) could be used in evidence against him, and no confession was taken. Therefore, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, upon which appellant relies, can have no application to the case at bar.

Another portion of his second ground of error is his contention that the trial court erred in failing to grant a hearing on appellant's motion to suppress certain testimony. The motion was filed on the day of trial. Recently, in Bosley v. State, 414 S.W.2d 468, we held that the trial court did not err in declining to hear a pretrial motion to suppress which was filed on the day of trial.

As his third ground of error appellant contends that the State should not have been permitted to seek the death penalty because the notice required in Art. 1.14, V.A.C.C.P., had been filed more than fifteen days prior to trial. A reading of Art. 1.14, supra, indicates that the notice need only be filed at least fifteen days prior to trial, not exactly fifteen days prior to trial. Appellant's third ground of error is overruled.

Appellant next contends that the court erred in permitting a separate hearing on the issue of punishment after the jury found appellant guilty. In Jones v. State, Tex.Cr.App., 416 S.W.2d 412, we disposed of this issue adversely to appellant's contention by stating that 'a defendant pleading not guilty in a capital case where the state is seeking the death penalty is denied no constitutional or statutory right when, without objection or at his request, separate trials are had before the same jury on the issues of guilt or innocence and the punishment to be assessed.' No objection was made to the order of the trial. Ground of error number four is overruled.

At the separate hearing on punishment, the court permitted the State to introduce testimony regarding appellant's reputation. Appellant's fifth ground of error is that such action was impermissible. In Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, we said:

'In view of the provision of Art. 37.07, Sec. 2(b), evidence may now be offered before a jury impaneled to assess the punishment 'as to the prior criminal record of the defendant, his general reputation and his character,' whether such jury is impaneled pursuant to Art. 26.14 or after the jury verdict of guilty has been returned.'

See also Broadway v. State, Tex.Cr.App., 418 S.W.2d 679; Smith v. State, Tex.Cr.App., 414 S.W.2d 659; Wilson v. State, Tex.Cr.App., 434 S.W.2d 873 (delivered December 11, 1968); Fletcher v. State, Tex.Cr.App., 437 S.W.2d 849, this day decided. Appellant's fifth ground of error is overruled.

Appellant's seventh ground of error is that he was compelled to participate in a lineup under circumstances which have been condemned by the Supreme Court of the United States in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The lineup in the instant case occurred prior to the date of the decisions in Wade and Gilbert and is not controlled by those decisions. Pearson v. United States (CA5), 389 F.2d 684, and Stovall v. Denno, supra.

Appellant's testimony given in the absence of the jury raises no issue as to the conduct or propriety or manner of holding the lineup. In answer to his counsel's questioning he merely said that there were 'approximately five or six' people in the lineup. Officer Newman testified that appellant made no complaint about being taken in to the one lineup at which he was identified by the injured party.

We find no intimation in this record that the law enforcement authorities took any action to suggest to any witness that appellant in their minds was the guilty party. We conclude from the above that the lineup was not constitutionally infirm. See Graham v. State, Tex.Cr.App., 422 S.W.2d 922; Cobbins v. State, Tex.Cr.App., 423 S.W.2d 589, at 591 (concurring opinion); and Stovall v. Denno, supra.

Appellant's eighth ground of error relates to the chain of custody of the pubic hair. Robert F. Crawford, whose professional credentials have previously been before this Court, Criswell v. State, 171 Tex.Cr.R. 206, 346 S.W.2d 341, and Sanders v. State, 166 Tex.Cr.R. 293, 312 S.W.2d 640, testified in the absence of the jury that appellant gave him the pubic hair in the police laboratory. 2 There is no showing that anyone else had custody of the pubic hair. Appellant's ground of error is overruled. Johnson v. State, 167 Tex.Cr.R. 284, 319 S.W.2d 713.

The ninth ground of error assigned by appellant arises out of the following colloquy:

'Q. (By the prosecutor): Did you on that date, the 7th of September, 1965, make an arrest at that intersection, sir?

A. (By Houston police officer Felcheck): Yes, sir, I did.

Q. Who did you arrest?

A. A man by the name of Roy Lee Bradley.

Q. Who was with him?

A. Dorthy Magee.

Q. What time of the day or night was it that you arrested him?

(Appellant's counsel): Your Honor, I want to object to this line of questioning. I see no bearing on this type of question.

(The prosecutor): We'll connect it up in a minute, your Honor.

THE COURT: Overruled.

Without discussing whether appellant's objection was timely made, we note that later in the trial appellant's counsel elicited the same information from another witness, thereby curing any error that existed. See cases collated at 13A Tex.Dig., Criminal Law 1169(2). Furthermore, such evidence was admissible by the State in rebuttal. See Flores v. State, 151 Tex.Cr.R. 478, 209 S.W.2d 168, and Shannon v. State, 123 Tex.Cr.R. 521, 59 S.W.2d 142.

Appellant's tenth ground of error is that the twelfth juror was improperly selected in that the juror was not 'passed for acceptance or challenge first to the state and then to the defendant' as required by Art. 35.13, V.A.C.C.P. The twelfth juror was questioned first by the State, then by appellant. At the conclusion of appellant's questioning, the juror was passed to the State, whereupon it was announced by the prosecutor 'We have a jury, Your Honor. We accept him.' The court then ordered the juror sworn in. Appellant had no peremptory challenges remaining at this juncture and he did not ask for any additional challenges. No error is shown.

Appellant complains, in his eleventh ground of error, of the court's failure to charge the jury on the identification of the appellant as the assailant, on circumstantial evidence, and on the legality of appellant's arrest and the seizure from his person of evidence.

There was sufficient direct evidence, as set forth above in our discussion of appellant's ground of error #1, so that a charge on identity and circumstantial...

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