Webb v. State, 43156

• Decision Date: 10 November 1970
• Docket Number: No. 43156,43156
• Citation: 460 S.W.2d 903
• Parties: Harvey Dale WEBB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 903

460 S.W.2d 903

Harvey Dale WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 43156.

Court of Criminal Appeals of Texas.

Nov. 10, 1970.

Rehearing Denied Dec. 31, 1970.

Tommy Warford, Saul Pullman, Eastland, for appellant.

Emory C. Walton, County & Dist. Atty., Eastland, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for statutory rape. The punishment was assessed by the court at seventy-five years.

The State's motion to dismiss the appeal will be considered. (This was the same escape discussed in Webb v. State Tex.Cr.App., 449 S.W.2d 230.) An affidavit dated July 23, 1969 by the sheriff of Eastland County recited that appellant escaped jail on May 27, 1969 and did not voluntarily return within ten days after the escape and that the sheriff did not have any knowledge of his whereabouts. It appears that appellant was arrested in Oklahoma City on the 13th day of October, 1969 and was returned to custody.

The record was approved by the trial court in January and filed in the Court of Criminal Appeals on May 18, 1970.

The trial court retains jurisdiction until the record on appeal reaches this Court. Unless the appellant is out of custody when the approved record is filed in this Court, we do not have jurisdiction to dismiss the appeal. McGee v. State, Tex.Cr.App., 445 S.W.2d 187. See Webb v. State, supra. The motion to dismiss the appeal is denied.

The summary of the facts in the State's brief is adopted (omitting the names of the prosecutrix and her boyfriend) and is as follows:

'On April 11, 1968, the Prosecutrix, _ _, age 17, and her boyfriend, _ _, age 20, went to Benbrook Dam at Fort Worth, Texas, to have lunch and while there, they were taken hostage by Appellant and his two companions who identified themselves as 'Clyde Barrow' (the Appellant herein), 'Bonnie Parker' and 'Jessie James.' The Appellant and his two companions had two pistols when they went to Miss _ _'s car, at which time the trio took their belongings from a U--Haul truck and placed the same in Miss _ _'s automobile. The Appellant and his companions then forced--(prosecutrix) and--(her boyfriend) to accompany them as the Appellant drove Miss _ _'s automobile to Stephenville, Texas, where he used Miss _ _'s gasoline credit card to purchase gasoline. Thereafter, the Appellant continued to drive Miss _ _'s car over various back-roads until at approximately 3:30 p.m., he turned off a back paved road, drove down a dirt road through a wire gate and into a pasture where he backed Miss _ _'s car into the trees. Thereafter, the Appellant informed the group that he knew of a farm house nearby and informed Miss _ _ and Mr. _ _ that he would take Miss _ _ to the farm house and let her go. Instead, the Appellant, with a loaded pistol, took Miss _ _ over the hill about 100 yards and out of sight of the others where he made her stop, completely disrobe out in the open, and lay her dress on the ground. Shortly prior to making Miss _ _ disrobe, the Appellant fired his pistol over her head.

'The Appellant asked Miss _ _ if she had ever had sex and she replied that she hadn't. He made her lie down on her dress where he fondled her female parts after which he raped her twice; when she started to cry out, he told her to shut up and to relax, and if she didn't, he would kill her. After this, the Appellant kept her at the place where he had raped her for approximately thirty minutes, during which time he made her talk with him about various subjects. When the Appellant left with Miss _ _ to return to the car, he threatened her if she told the others what had happened.

'At approximately 6:00 p.m., the Appellant, his two companions and the two hostages left the pasture and proceeded to a deserted road between Snyder, Texas, and Gail, Texas, where Miss _ _ and Mr. _ _ were let out of Miss _ _'s automobile at 9:30 to 10:00 p.m. The Appellant and his companions continued in Miss _ _'s car. Mr. _ _ and Miss _ _ finally found a farm house a mile or so away where they notified the authorities.'

In the first ground of error it is contended that the court erred in not granting a continuance to allow court appointed counsel to prepare appellant's case and in overruling the renewed motion for continuance to study a medical report of a court appointed physician.

The indictment was returned on June 19, 1968. A bench warrant was issued and on March 7, 1969, appellant was taken from Fort Worth to Eastland County. On March 14th, the Honorable Tommy Warford was appointed to represent appellant. The case was set for trial on April 14th. On March 28, Mr. Warford asked the court to appoint co-counsel, and at that time the court appointed the Honorable Saul Pullman to assist in the preparation and trial of the case. On the same day a motion for continuance was filed. The following was alleged in the motion:

'Much of the information vital to Defendant's defense has to be secured from various out-of-state parties, namely from Doctors' Hospital, Inc., Shreveport, La.; Arizona State Penitentiary, Florence, Ariz.; Edna Martin, Shreveport, La.; and M. G. Adams, Roswell, N.M.. As of this date, attorney for Defendant has received little, if any, response from inquiries sent to the above named parties. Therefore, Defendant says that he...