Solomon v. State

• Decision Date: 02 June 1971
• Docket Number: No. 43824,43824
• Citation: 467 S.W.2d 422
• Parties: John C. SOLOMON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 422

467 S.W.2d 422

John C. SOLOMON, Appellant, v. The STATE of Texas, Appellee.

No. 43824.

Court of Criminal Appeals of Texas.

June 2, 1971.

Nelson S. Hargrave, Jerry P. Payne, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and I. D. McMaster, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of rape. The state did not give notice of intention to seek the death penalty; punishment was assessed by the court at life.

Appellant alleges three contentions herein. They are: (1) error was committed by overruling motion to quash the indictment because he was not afforded an examining trial under Article 16.01, Vernon's Ann.C.C.P.; (2) by overruling 'motion for production of grand jury minutes, documents, statements, tests, examination and evidence * * *'; (3) he was denied confrontation and testimony of prosecutrix because of no examining trial.

The record reflects that a request was made for an examining trial but the indictment was returned prior to the hearing date, therefore no examining trial was conducted.

This court, on numerous occasions, has held that the failure to grant an examining trial prior to the return of an indictment does not affect the validity of the indictment. The return of an indictment terminates the right to an examining trial and eliminates the necessity therefor. Montoya v. State, Tex.Cr.App., 464 S.W.2d 853; Beshears v. State, Tex.Cr.App., 461 S.W.2d 122; Harris v. State, Tex.Cr.App., 457 S.W.2d 903; Johnson v. State, Tex.Cr.App., 453 S.W.2d 840; Briseno v. State, Tex.Cr.App., 450 S.W.2d 865; Klechka v. State, Tex.Cr.App., 429 S.W.2d 900, cert. denied, 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592; Wallace v. State, Tex.Cr.App., 429 S.W.2d 145; Gooden v. State, Tex.Cr.App., 425 S.W.2d 645; Murphy v. State, Tex.Cr.App., 424 S.W.2d 231.

The first part of appellant's ground of error is overruled.

Next, appellant contends that failure to have an examining trial was a denial of effective legal assistance as his attorney had not been afforded the discovery proceeding thereunder. Therefore, he should have been furnished certain documents, etc.

Article 39.14, V.A.C.C.P., sets out the procedure for discovery and provides:

'Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.'

The court conducted a hearing on defense motions, and the record reflects the following:

'THE COURT: * * * I now have in connection with this case a motion for production of grand jury minutes, documents, statements, tests, examination of evidence. Do you wish to offer evidence in connection with this motion?

'MR. HARGROVE: No, Your Honor. We would urge the attorney for the State to furnish us with the police report. He has furnished us with medical reports. We would urge at this time that the police report itself be furnished.

'THE COURT: Does the State wish to reply?

'MR. McMASTER: Yes, sir. We refuse. I don't believe he's entitled to...