Todd v. State

• Decision Date: 07 May 1980
• Docket Number: No. 59180,No. 2,59180,2
• Citation: 598 S.W.2d 286
• Parties: Jimmy Webb TODD, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 286

598 S.W.2d 286

Jimmy Webb TODD, Appellant, v. The STATE of Texas, Appellee.

No. 59180.

Court of Criminal Appeals of Texas, Panel No. 2.

May 7, 1980.

Melvyn Carson Bruder, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Stephen J. Wilensky, Braden W. Sparks and David Schick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal follows conviction for the offense of aggravated rape. Upon the jury's finding that the allegations contained in two enhancement paragraphs of the indictment were true, the trial court assessed appellant's punishment at life confinement pursuant to V.T.C.A. Penal Code, § 12.42(d).

The State's evidence established that on May 9, 1977, between 8:30 and 9:00 a. m., the complainant answered a knock at her upstairs apartment door. A man identified by complainant as appellant advised her that he was there to exterminate the apartment. Complainant replied that she knew nothing of plans to exterminate, and told him to check with the manager, complainant's mother. Appellant then asked complainant whether she had any medicines, explaining that the poison could get into the bottles. Complainant told appellant he could not come in, and saw him walk away as she closed the door. ¹

Complainant walked into her bathroom and began looking for bottles of medicine. Suddenly, appellant appeared and grabbed her from behind by the neck, holding her against him with the "crook of his elbow." Complainant then saw a knife which she described as a pocket knife with an approximately two inch blade. Complainant testified: "He told me that if I screamed that he would kill me." Appellant then took her to the bed undressed her completely and dropped his own pants to his knees. He then penetrated her vagina with his penis. After appellant was finished he asked complainant, "Did it feel good? She replied, "no;" appellant pulled up his pants and left. Complainant dressed and sought her mother. They walked to a phone booth and called the police and complainant's husband.

The fourteen year old complainant testified that she did not know appellant; when he grabbed her by the neck she could not speak, and she cooperated because she was in fear for her life. Hair specimens taken from the scene compared favorably with known hair samples taken from appellant, and fluid samples obtained from the vagina of the victim within hours of the rape revealed motile sperm and a high presence of semen. Through chemical analysis of the semen samples it was determined that the blood type of the assailant was the same as that of appellant.

By his first ground of error, appellant complains of the trial court's refusal to recuse himself. The Honorable Herbert Line, a retired district judge, was administratively assigned on October 27, 1977, to preside over the 203rd Judicial District Court for a two week period beginning October 30, 1977 pursuant to Article 200a, V.T.C.A., Civil Statutes. At the time of this assignment, Judge Line was seventy years and five months old. The instant case came on for trial on October 31, 1977 and at that time appellant moved that Judge Line recuse himself for disqualification under Article 200a, § 5a, supra. ²

This contention has been decided adversely to appellant; in Jackson v. State, 567 S.W.2d 222, 223 (Tex.Cr.App.1978) a panel of this Court held:

"The age limit of seventy years found in Sec. 5a, supra, does not apply to retired or 'regular' district judges; it applies only to 'former' district judges. (Citation omitted)

The retired district judge who presided at appellant's trial was lawfully assigned to the district court."

This ground of error is overruled.

Appellant's second ground of error complains of the admission during the State's rebuttal testimony of extraneous conduct on the part of the accused, which constituted a similar rape offense. It is appellant's contention that the sole witness he presented during his case in chief, a supervisory employee at appellant's place of employment, did not raise the issue of alibi through his testimony that appellant "punched in" at 9:21 a. m. on the morning of the rape. The State retorts that while appellant did not raise a "perfect" alibi defense through this testimony, the issue was nevertheless raised, particularly when coupled with the witness' testimony regarding the time it takes to walk from the employees' parking lot to the company's main building complex.

Upon our reading of the record as a whole, we find that we need not resolve this issue on the considerations advanced by the parties, because the extraneous offense was appropriately admitted to rebut the defensive theory of misidentification, of which the alibi evidence was only a part; undermining the identity of appellant as the rapist was the patent aim of the entire defense strategy.

The complainant provided the sole eyewitness identification of appellant. ³ On cross examination, appellant's attorney confronted her with her prior inconsistent examining trial testimony regarding the time of the commission of the offense and her failure to identify appellant at that time.

At the examining trial, complainant had testified that the rape had occurred around 9:00 a. m., while at trial she admitted she had been earlier mistaken because she now remembered it was closer to 8:30.

We believe that this cross examination, coupled with evidence that the police received a radio call reporting the offense at 9:10 a. m., and that it was approximately 3.3 miles (10 minutes driving time) from complainant's apartment to appellant's work place, may well have alone rendered the complained of evidence admissible upon the presentation of appellant's "imperfect" alibi defense. This is so because while appellant presented rebuttal testimony that he and his ex-fiancee had 3 cars between them and 2 were often in repair, he then left the jury to speculate about the possibility that he had therefore been "on foot" around the time of the commission of the offense and could not possibly have arrived at work by 9:21 a. m. had he detoured to rape complainant. (See also, n. 5, infra, and accompanying text.)

Complainant's opportunity to observe her assailant and the consistency of her description of him were attacked; her age of fourteen and her seventh grade education were offered as reasons for her "suggestibility," both on cross examination and during final argument. One of the investigating officers was vigorously cross examined regarding both a "change" he made in his police report regarding complainant's description of her attacker, and the asserted impermissibly suggestive photographic line-up he displayed to complainant 16 days after the offense. A repeated theme of the defense cross examination, as well as rebuttal evidence, was the unreliability of all testimony regarding the length and color of the assailant's hair. Furthermore, appellant's ex-fiancee testified that she was familiar with all of appellant's clothing, and that he did not possess a short sleeved, yellow striped shirt such as the one described by complainant as having been worn by her assailant.

Additionally, appellant's counsel sought to undermine the testimony of the State's expert witnesses, particularly that of Sally Williams, a medical technologist employed by the Southwestern Institute of Forensic Science to supervise detection and identification of blood, body fluids and hair. This witness testified that the hair samples obtained from the scene, which matched those taken from appellant, would be found on one person in 20,000,000. Appellant's counsel laboriously cross examined this witness, ultimately establishing that the witness did not know either the chemical elemental makeup of hair, or anything about neutron activation analysis of hair. Williams admitted she did not know whether the elemental composition of hair would be affected by perspiration, washing, putting oil on or hair spraying the hair. She admitted she did not determine the metric diameter measurement of the hair shafts compared, ⁴ and finally that she made no comparisons of hair or blood type with samples taken from the victim's husband.

Any doubt left regarding the defensive trial strategy advanced in this week long proceeding which fills 1,311 pages of transcription, is assuaged by a review of defense counsel's final argument on the issue of guilt: The asserted questionable identification of appellant as the assailant was doggedly argued as the factor which provided the jury with reasonable doubt as to appellant's guilt. The alibi, characterized by the State as "imperfect," was likewise forcefully advanced. ⁵

It is therefore clear that the only purpose for the lengthy and vigorous voir dire and cross examination of the State's identifying witnesses by appellant's attorney was to make a defensive issue of the identity of appellant and cast doubt upon his being the guilty man.

We hold that this, coupled with the testimony of appellant's witnesses, rendered the strikingly similar extraneous rape committed within 15 days of the primary rape admissible to rebut the defensive issue of misidentification of appellant. Walker v. State, 588 S.W.2d 920 (Tex.Cr.App.1979) (Rehearing en banc denied January 23, 1980); Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974); Gillon v. State, 492 S.W.2d 948 (Tex.Cr.App.1973); Parks v. State, 437 S.W.2d 554 (Tex.Cr.App.1969). This ground of error is overruled.

Appellant's third ground of error alleges that there is a fatal variance between the evidence and the allegation made in the third paragraph of the indictment returned against him. Specifically, it is appellant's contention that the evidence showed that the conviction alleged for enhancement resulted from a revocation of probation, but the indictment alleged only a "final conviction." This contention is clearly without merit.

Proof by the State that a...