Vessels v. State, 41019

• Decision Date: 06 March 1968
• Docket Number: No. 41019,41019
• Citation: 432 S.W.2d 108
• Parties: T. R. VESSELS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 108

432 S.W.2d 108

T. R. VESSELS, Appellant, v. The STATE of Texas, Appellee.

No. 41019.

Court of Criminal Appeals of Texas.

March 6, 1968.

On Rehearing July 24, 1968.

Rehearing Denied Oct. 23, 1968.

Warren Burnett, Odessa, for appellant.

Bill W. Waters, Dist. Atty., Pampa, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for rape; the punishment, death.

The appellant presents five grounds of error in his brief urging reversal.

In his motion for new trial filed November 8, 1966, appellant alleged in paragraph 7:

'The defendant would show to the court that there has been new testimony material to the defendant's defense which has been discovered since the time of the trial.'

In his amended motion for new trial filed December 22, 1966, appellant alleged, in paragraph II:

'That since the Trial of the Defendant was concluded on the 28 day of October, 19 hundred and 66, there has been discovered new evidence which was found to exist through no lack of diligence on the part of the Defendant. Such evidence being that a sample of pubic hair taken from the Defendant together with the samples of pubic hair found on the bedspread upon which the alleged rape assertedly occurred were transmitted to the Texas Department of Public Safety Laboratory and the chemist who there made an examination of the same reported to the District Attorney of Gray County that he was unable to identify the pubic hair on the bedspread with that of the suspect, meaning the sample of pubic hair taken from the Defendant. In this connection, the Court is urged, that such chemist will testify that ordinarily such identification can be made if it in fact exists and such circumstance clearly raises and supports the inference that a person other than the accused Vessels participated in this transaction made the basis of the prosecution herein and that such newly discovered evidence, if presented to a Jury, would likely result in a different result by the way of verdict on the issue of guilt or innocence or alternatively on the quantum of punishment to be assessed.'

Ground of error No. 1 set forth in appellant's appellate brief filed in the trial court on July 5, 1967, is:

'The trial court erred in refusing to grant appellant's motion for new trial on the proof of failure of the State to disclose relevant evidence highly beneficial to the accused.'

The facts set out in the brief, in support of this ground of error, are that close to the time the dog hair specimens were submitted to the chemist, quantities of pubic hair were taken from the complaining witness and from appellant and were given to the same chemist for a comparison, the comparison desired being one contrasting the identified pubic hair from the victim and appellant with certain pubic hairs found on the top of the bedspread immediately after the crime occurred. The comparison was made and the chemist expressed the opinion that the pubic hairs donated by appellant and the victim were not even similar in appearance to the pubic hair found on the bedspread just after the rapes. The opinion was available to the prosecutor before trial, but was not made known to appellant's court appointed trial lawyer before or during the trial. Based on the comparison, the chemist would have testified that in all reasonable probability the pubic hair found on the bedspread did not come from either of the known donors, appellant and the complaining witness.

Such evidence, the bill contends, goes beyond being beneficial to appellant but weighed in light of logic impels toward the conclusion that some third and unknown person committed the crime.

Citing Ashley v. State of Texas, 5 Cir., 319 F.2d 80, counsel argues in his brief that the state elected to use one scientific hair comparison to aid its case and at the same time failed to disclose the fact of and result of yet another scientific comparison tending to establish (if not in fact doing so) the innocence of appellant.

The ground of error must be appraised in the light of the issues before the court at the hearing which were raised in the motion for new trial and the facts of the case.

This court held, in the recent case of Hobbs v. State, 407 S.W.2d 791, that an exception to the court's action in refusing to grant a new trial on the ground of newly discovered evidence not urged as a ground of error in the defendant's appellate brief was not before this court for review.

It is also the holding of this court that in order to entitle the defendant to a new trial, newly discovered evidence must be such as would likely change the result, if produced at another trial. Bryan v. State, Tex.Cr.App., 406 S.W.2d 210, cert. denied, 386 U.S. 1023, 87 S.Ct. 1378, 18 L.Ed.2d 461; 1 Branch's Ann.P.C. 2d Ed., Sec. 223.

The victim made immediate outcry and was taken to the hospital by a neighbor. She positively identified appellant at the trial as the man who gained entrance to the home she occupied with her husband and their eight months old baby on the pretext that he needed to come in and see if there were any leaks in the gas appliances. She testified that appellant threatened to kill her if she screamed; ravished her twice, stabbed her and robbed her of the seven dollars she had in her purse.

The physician who attended the victim at the hospital testified that she had suffered stab wounds in the abdomen and chest and he described four which his examination revealed were superficial and one deeper stab wound in the upper abdomen which penetrated through the abdominal wall and slightly cut the liver and a blood vessel in the colon. He testified that he accepted her statement that she had been raped as well as stabbed and ran no tests on the secretions from her vagina to determine if there was any sperm there.

In addition to her positive identification of appellant at the trial, the victim had identified appellant in a police lineup and the state offered evidence that dog hair found on his clothing after his arrest was identical with hair of the victim's dog.

It is interesting to note that in his remarks to the jury at the trial on the issue of guilt or innocence, appellant's counsel argued that appellant was not being tried for robbery or for assault, but for rape, and that the only issue the jury had to decide was 'was she penetrated by the male organ of Tommy R. Vessels beyond a reasonable doubt,' and * * * 'I guarantee you he's sorry, he's no good and you will find this out as the case progresses, but I want you to take into consideration only one thing; Did he actually penetrate with his male organ the female organ of (the victim). If he did, why didn't the state come in with the proper corroborative evidence?'

The evidence which counsel complained was missing was blood on the victim's brassiere; an independent determination by the doctor which would have foreclosed doubt 'that Vessels, attacker, robber, is also a rapist.'

In his argument counsel for appellant also pointed to the absence of any evidence as to fingerprints on the yard gate through which appellant probably entered and of testimony as to any blood on appellant's Levi jacket or his shirt, or in the victim's bedroom.

After the jury had found appellant guilty of rape and had heard the evidence of his prior criminal record, including several felony convictions, appellant's counsel remarked to the jury in his argument: 'I concur in your verdict. I think you have done the right thing.'

While the state was making out its case in chief and before the chemist testified, Sheriff Jordan testified on cross-examination that the appellant willingly gave him specimens of pubic hair.

The chemist testified that the comparison test was made not later than May 20, 1966.

Soon after appellant's arrest, he willingly furnished the state with specimens of pubic hair from his body. Thus, he was forewarned concerning this phase of the state's investigation.

We do not agree that the report of the chemist was inconsistent with appellant's guilt or that the district attorney conducted his examination of the chemist so as to leave the impression in the minds of the jurors that in fact no human hair report or testimony existed.

A fair inference could be drawn by counsel from the state's failure to prove that hair had been found in the home of the victim which was similar to the hair appellant had furnished--that no such hair had been found.

The chemist was not furnished and did not have a sample of the hair of the husband of the victim with which to compare the hair found on the bedspread.

The trial court did not err in overruling the motion for new trial on the ground of newly discovered evidence.

We do not agree that the record supports appellant's ground of error predicated upon newly discovered evidence that any failure or refusal of the state or its officers to disclose the results of the comparison of pubic hairs denied appellant due process of law. Ground of error No. 1 is overruled.

In appellant's second ground of error he contends that the trial court erred in refusing compulsory process to the appellant in connection with his hearing on motion for new trial.

Even though, the trial court, on December 22, 1966, refused to accord the appellant his rights in connection with a hearing on his motion for a new trial, he notified the appellant on December 27, 1966, that he would grant subpoenas and hear further evidence on the motion for new trial on December 29, 1966.

On December 29, 1966, the judge announced in open court that he did not want to be responsible for not allowing the appellant's witnesses to be subpoenaed, and that appellant could have the witnesses he wanted. The judge further said:

'If we proceed with this hearing, and we don't get through today, we will continue on until we get the witnesses you want in here.'

At the time the evidence closed, the following occurred:

'Mr. Burnett: If your Honor please, we have no...