Torres v. State

• Decision Date: 16 December 1959
• Docket Number: No. 30823,30823
• Parties: Jessie TORRES, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 929

331 S.W.2d 929

169 Tex.Crim. 113

Jessie TORRES, Appellant, v. STATE of Texas, Appellee.

No. 30823.

Court of Criminal Appeals of Texas.

Dec. 16, 1959.

Rehearing Denied Feb. 3, 1960.

Arthur L. Lapham, Victoria, Fly & Moeller, by Wm. F. Moeller, Victoria, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for rape by force; the punishment, life.

The court in submitting the case to the jury made appellant's guilt depend solely upon their finding that he was acting as a principal with Ted Vargas in commission of the offense charged.

The prosecutrix, 17 years of age, her male companion, and another girl and her male companion, parked their car by the roadside about 11:30 P.M. and walked down by a creek. Shortly thereafter, appellant and six companions, all Latin-Americans, arrived, parked their car nearby, scratched the body of the parked car, tore off its antenna, raised the hood and threw sand on the motor. When the prosecutrix and her companions appeared they were not allowed to leave. Appellant's group struck the girls' companions, jerked prosecutrix's bra off, removed her blue jeans, and she was held while several members of the group had numerous acts of intercourse with her without her consent. Ted Vargas had the first act; appellant was third, but after getting on top of the prosecutrix, he was pulled off before he could penetrate her. The written statement of appellant was introduced in evidence by the State and it in part reads: 'Ted (Vargas) had intercourse with her and then I started to have intercourse with her and then I had a rubber on but before I could get started, I was between her legs, someone pulled me off and Thomas or Ted (Vargas) was having intercourse with her and when I attempted to have intercourse with her she was unconscious. After Thomas or Ted (Vargas) got through we put her clothes back on, then I carried her half-way to the creek and Ted (Vargas) carried her some. She was undressed again and David, Alfred and me put water on her face. While we were putting the water on her face to bring her to, Ted (Vargas) was having intercourse with her * * *'.

Appellant while testifying in his own behalf, stated that soon after they had met the girls that he told one of his companions that they would be 'easy'; that he intended and tried to have intercourse with the prosecutrix, but he didn't because he was pulled away; that he put water on the prosecutrix's face while Ted Vargas was having intercourse with her.

The proof shows that the appellant, before and after the attack, threatened to kill the prosecutrix if she told what they did

The voluntary character of appellant's written statement introduced by the state was submitted to the jury.

The evidence is sufficient to support the conviction.

Appellant filed oath of his inability to pay for a transcript of the evidence. He contends that he was deprived of his informal bills of exception reserved during the voir dire examination of the prospective jurors because the trial court declined to order the court reporter to furnish him a complete transcript of the voir dire examination of all of these jurors.

Appellant relies upon Art. 759a, Sec. 2(c), Vernon's Ann.C.C.P., which provides that the defendant may reserve in the statement of facts, or by informal bill of exception, objection to argument of State's counsel, motion to withdraw testimony, or ruling of the trial court made during the trial of the case.

Section 5 of Article 759a, V.A.C.C.P., provides that the court shall order the official court reporter to make 'a Statement of Facts in narrative or question and answer form, as the defendant in said affidavit shall request'--'when a defendant in a felony case appeals and is not able to pay for a transcript of the evidence [and he makes] an affidavit of such fact.'

Clearly, the statement of facts referred to in section 5 means 'a transcript of the evidence.'

Under the terms of Section 6 of Art. 759a it applies to the evidence adduced in connection with any motion heard in the case, which shall be filed separately with the clerk; and rejected testimony offered to perfect a bill of exception to its exclusion (Section 2(a).

Appellant is in no position to complain and does not contend that he has been deprived of a statement of facts.

The record contains a statement of facts in question and answer form consisting of 533 pages, and a 193 page transcript in question and answer form of the evidence adduced on hearing of appellant's motion for new trial, certified by the official court reporter, agreed to by the district attorney and county attorney, and by the attorneys for appellant, and approved by the trial judge.

The bill of exception certifies that the court instructed the court reporter, in the presence of appellant and his counsel, to go over his shorthand notes and recorded records of the voir dire examination of the jurors and of argument of counsel to the jury and 'to transcribe from them any excerpts both of the voir dire examination and argument that counsel might specifically point out.'

After hearing the recording of argument of counsel for the state, and the court reporter having transcribed the portion of the argument which counsel requested, counsel for appellant prepared a formal bill of exception to these remarks and withdrew his demand that the entire argument be transcribed.

Counsel did not request the court reporter to play back or read from his records any portion of the voir dire examination of the jury, but declined the court's offer to instruct the court reporter to do so 'stating to the court it would require him to sit for about 3 1/2 days listening to same.' He reserved his exception to the court's refusal to require the official court reporter to transcribe his notes and reduce to writing all of the voir dire examination of the jury, contending that such refusal was depriving appellant of the many informal bills of exception which were made during such examination.

Under the court's ruling counsel for appellant was not deprived of these informal bills.

Appellant's counsel declined to accept a transcript of that portion of the record which would have constituted informal bills of exception which he desired to present on appeal, and failed to prepare formal bills of exception and, if necessary, bystanders' bills.

We are not here dealing with a situation where the voir dire examination of the jurors is relied upon in a motion for change of venue or for a new trial because venue was not changed as no motion for change of venue was filed.

In such cases this Court has observed that the entire examination would be helpful in passing upon such motions. If offered for that purpose the examination would become a part of the transcript of the evidence in connection with the motion.

Error is urged because the trial court in the absence of the appellant communicated with the jury during their deliberations.

The record shows that in the absence of the appellant the sheriff delivered a written note containing a question from the jury to the judge; and the judge said to the sheriff in substance; 'Just take this note back up there and tell them that the court can't answer it,' which the sheriff did.

A similar contention was considered and fully discussed in Davis v. State, Tex.Cr.App., 328 S.W.2d 765, 767. It was there concluded that: 'where the judge refuses to answer the question and says no more, reversible error is not reflected by his failure to bring the jury into the courtroom in the presence of the accused and his counsel in order to deliver his note of refusal to them.'

The record does not show the age of Ted Vargas and in the absence of such proof we need not consider the complaint of the refusal of appellant's requested charge that unless Ted Vargas was over 14 years of age, appellant could not be convicted as acting as a principal with him in the commission of the offense charged.

Appellant complains of the refusal of the court, at the close of the state's case in chief, to require the state to elect the act upon which it relied for a conviction.

The evidence shows several acts of sexual intercourse by force and threats. The evidence thereof was admissible as res gestae.

Under the facts no election was required at the close of the state's case in chief. Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705.

Appellant contends that the trial court erred in refusing to grant his amended motion for a new trial because of jury misconduct in that the jury received new evidence while they were deliberating which was prejudicial to him.

He insists that such misconduct of the jury consisted of their consideration of new and unsworn testimony of the indeterminate sentence and parole laws in assessing the term of life imprisonment.

On the hearing appellant called seven of the jurors and the state called two. The testimony shows that no juror stated what the law was pertaining to the time a prisoner would have to serve before release because none of them knew. All thought he would be released after serving part of the sentence; and some stated they thought he would be released when he had served one third of the sentence. Others mentioned that they had heard or knew of prisoners being released after serving part of the sentence.

It is common knowledge that an inmate of the penitentiary is credited with extra time on his sentence for good behavior and also for special and essential work. 1 Branch's Ann.P.C., 2d E., Sec. 586, pp. 561-562; Walker v. State, 150 Tex.Cr.R. 421, 201 S.W.2d 823; Plasentilla v. State, 152 Tex.Cr.R. 618, 216 S.W.2d 187; Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557.

The jury's discussion reveals no untrue or incorrect statements by them of the time an inmate must serve before he is eligible for parole. Therefore the discussion was not prejudicial to the rights of the appellant and no error is...