Wall v. State, 40473

• Decision Date: 28 June 1967
• Docket Number: No. 40473,40473
• Citation: 417 S.W.2d 59
• Parties: Tommy WALL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 59

417 S.W.2d 59

Tommy WALL, Appellant, v. The STATE of Texas, Appellee.

No. 40473.

Court of Criminal Appeals of Texas.

June 28, 1967.

Blanchard, Clifford, Gilkerson & Smith, by George E. Gilkerson, Lubbock, for appellant.

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

OPINION

ONION, Judge.

The offense is Rape; the punishment assessed by the jury, seven and one half (7 1/2) years in the Texas Department of Corrections.

Appellant vigorously attacks the sufficiency of the evidence to sustain the conviction.

The record reflects that in the early morning hours of December 9, 1965, T$ $ W$ $, the eleven year old daughter of the appellant was the victim of an assault in the darkened bedroom of her unlocked home in the City of Shamrock.

In presenting its case in chief, the State called five witnesses. The testimony of the first two witnesses, a doctor and a laboratory technician, related to the physical examination of the prosecuting witness five or six hours after the alleged attack and the finding of male sperm in her vagina. The third State witness was the wife of the appellant who refused to testify after being compelled to take the witness stand in the presence of the jury to claim her privilege. Another witness was the County Attorney who identified a tape recording of his interview with the prosecutrix.

The alleged injured female was called as a witness for the prosecution. On voir dire examination, in the absence of the jury, as to her qualifications as a witness, T$ $ W$ $, prior to the Court's termination of such line of questioning, denied that appellant committed any type of offense against her on or about the 9th day of December, A.D., 1965.

Subsequently on direct examination, she was never questioned as to whether the appellant committed the act charged. The questioning was to the accusations she had made against the appellant within five or six hours following the alleged rape.

On cross-examination, she denied knowing who had committed the sexual act with her, and specifically denied it was the appellant.

She explained her earlier accusations against her father resulted from what she considered unfair or unequal treatment by him because she was made to baby sit and do the dishes, and felt that she was treated differently because her school grades were not as good as the other children. She freely admitted these accusations against her father had been made to her mother, the doctor who had examined her, the County Attorney who tape recorded her statements, and her siblings, but stated such accusations were not true.

On re-direct examination, she reiterated her emphatic denial that she knew who had attacked her. The State, over objection, was then improperly allowed to impeach its own witness. The prosecutor elicited from her the fact that she had taken a lie detector test in the State of Arizona and had been told by the operator that she was not being truthful in denying appellant's guilt.

Upon re-calling the prosecutrix, the State again attempted to impeach her, over objection, by playing the tape recording of the details of her interview with the County Attorney shortly after the alleged attack. The record reflects that prior to the verdict such recording was played for the jury three times despite objections.

The impeachment was improper for several reasons and constituted reversible error regardless of the sufficiency of the evidence.

First, a party introducing a witness cannot attack his or her testimony unless the witness has stated facts injurious to such party. Article 38.28, Vernon's Ann.C.C.P. Mims v. State, 159 Tex.Cr.R. 180, 261 S.W.2d 727. It is not sufficient that the witness merely fails to testify as expected or to remember facts favorable to the party calling the witness. Crandall v. State, 170 Tex.Cr.R. 229, 340 S.W.2d 36. If the State, as in the case at bar, has offered no evidence to prove a relevant fact, it cannot be said that its witness, who denies existence of that relevant fact has by that denial stated facts injurious to the State's case. Baum v. State, 60 Tex.Cr.R. 638, 133 S.W. 271.

Further, foreknowledge of a witness's testimony precludes impeachment though such testimony is decidedly adverse on a vital issue. Perrett v. State, 75 Tex.Cr.R. 94, 170 S.W. 316; Hollingsworth v. State, 78 Tex.Cr.R. 489, 182 S.W. 465; Scott v. State, Tex.Cr.App., 20 S.W. 549; 62 Tex.Jur.2d, 339, Sec. 323.

In the instant case, the State, at no time, claimed surprise nor laid any predicate to justify impeaching its own witness. In fact the record is replete with evidence that the District Attorney had been told sometime prior to the trial by the prosecuting witness that she would deny that appellant had raped her and would claim her previous accusations were false.

In Ware v. State, Tex.Cr.App., 92 S.W. 1093, it was held that where the State's witness admitted that he had made a contrary statement, but said he made it by mistake and before the trial had informed State's counsel that he was mistaken such witness could not be impeached by such statement. See Barham v. State, 130 Tex.Cr.R. 233, 93 S.W.2d 741; Odneal v. State, 117 Tex.Cr.R. 412, 36 S.W.2d 1020.

Still further, it is well recognized that evidence of the results of a polygraph test is not admissible on behalf of either the State or the accused. Nichols v. State Tex.Cr.App., 378 S.W.2d 335; Placker v. State, 171 Tex.Cr.R. 406, 350 S.W.2d 546. Despite the fact that the trial court's attention was directed to these very two cases by appellant's counsel such evidence was nevertheless admitted.

Appellant did not testify nor offer any witnesses in his behalf.

The Court in its charge limited the jury's use of impeachment testimony to the weight, if any, to be given to the prosecuting witness's testimony and her credibility and instructed the jury such testimony could not be considered as tending to establish the alleged guilt of the defendant. Such charge, however, did not cure the errors already observed. 1 Branch's Anno.P.C.2d Ed., Sec. 186, p. 198.

While the record reflects some suspicious circumstances, we easily conclude that the evidence is clearly insufficient to support the jury's verdict.

The State's witness testified appellant was not the person committing the act and the State did not thereafter disprove by Primary evidence such fact, thereby rendering the evidence insufficient to sustain the conviction. Mancil v. State, Tex.Cr.App., 391 S.W.2d 731.

It is well established that even properly admitted impeaching testimony cannot be used as primary evidence. Lawhon v. State, Tex.Cr.App., 284 S.W.2d 730; Wells v. State, 154 Tex.Cr.R. 336, 227 S.W.2d 210; Hall v. State, 164 Tex.Cr.R. 142, 297 S.W.2d 685; Shivers v. State, Tex.Cr.App., 374 S.W.2d 672; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772. 1 Branch's Anno.P.C.2d Ed., Sec. 186, pp. 196, 197.

In Skeen v. State, 51 Tex.Cr.R. 39, 100 S.W. 770, this Court, in finding the evidence insufficient, was confronted with a fact situation quite similar to the case at bar. In Skeen, the alleged injured female swore most emphatically that appellant had not had intercourse with her at any time. The prosecutor was then allowed to elicit from his own witness that she had made a different statement to him and before the grand jury. There this Court said:

'* * * Without going into any detailed discussion of the grounds of exception, we hold this testimony, in regard to her statements to the county attorney and before the grand jury, was clearly inadmissible under the circumstances, and her impeachment, as it occurred, was clearly illegitimate. She had denied having intercourse with the defendant, and the fact that she had previously stated that she had had could only be used as impeachment, if such testimony was at all allowed; that is, it could not be used as original evidence, but in this particular case and under...