White v. State

• Decision Date: 05 April 1972
• Docket Number: No. 44689,44689
• Parties: Clarence Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 506

478 S.W.2d 506

Clarence Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 44689.

Court of Criminal Appeals of Texas.

April 5, 1972.

E. Brice Cunningham, Dallas, for appellant.

Henry Wade, Dist. Atty., and Edgar A. Mason, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for rape by force. The punishment was assessed at 45 years.

We shall not consider the grounds of error in the order presented by the appellant. At the outset, we observe that the appellant challenges the sufficiency of the evidence to sustain the conviction.

The record reflects that on July 3, 1969, the prosecutrix was at home in the City of Garland with her two children while her husband was at work. At approximately 2:00 p.m. a black man came to the door and asked whether there was any yard work that needed to be done. When told there was none, the man left, but returned about five minutes later. When the prosecutrix came to the door this time, she found the individual inside the screen door. The man, who was carrying a gun wrapped in a dish towel, forced his way into the living room. The prosecutrix was then ordered to the kitchen and back to the living room. In the process of this movement, the intruder picked up some sewing scissors and grabbed the prosecutrix around the neck, and she was thrown on the living room couch, her clothing was removed and she was instructed to remain silent. A complete sexual assault was shown to have occurred on the couch without prosecutrix's consent and at a time when she was in fear for her life and the safety of her children playing in the next room. Appellant was positively identified as the assailant.

The defensive theory was alibi and was supported by the testimony of appellant and several members of his family which tended to show, had it been believed, that appellant was at home at the time the assault occurred.

By its verdict the jury, as trier of the facts, rejected appellant's position. The testimony of the prosecuting witness in a rape case need not be corroborated except in instances of a belated outcry. ¹ Here the victim complained immediately after the assault occurred.

Considering the evidence in the light most favorable to the jury's verdict, as this court is required to do, we find it sufficient to support the verdict.

Appellant further contends that the trial court erred in refusing his motion in limine seeking to prohibit the State from mentioning his motion for probation during voir dire examination of the jury panel or at any time during the guilt stage of the trial.

A transcription of such voir dire examination, if taken, is not in the record before us and the appellant has failed to point out where, in the record before us, the State commented on, mentioned or referred to the motion for probation at the guilt stage of the trial. It would not appear that any question has been presented for review. O'Dell v. State, 467 S.W.2d 444 (Tex.Cr.App.1971). ²

Further, and far more important is the fact that the appellant filed his motion seeking probation from the jury. When this is done, the jury is the one to determine punishment and the issue of probation in the event of finding of guilt. Article 37.07, § 2(b), as amended 1969, Vernon's Ann.C.C.P. While an accused may be willing to forego any voir dire examination on the law relating to adult probation he cannot foreclose the State from so inquiring. The only time the State would have this opportunity would be during the voir dire examination and prior to the selection of the jury for the bifurated trial. See Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1972).

Appellant's contention is without merit.

Appellant also complains that error was committed when the trial court sustained the State's objection to admission of a 'mug-shot' type photograph of appellant. It was appellant's testimony that said photograph had been taken at the Garland Police Department on or about August 8th, 1969, and given to him by Sgt. Carlock. When questioned by the careful trial judge of the 'materiality' of the picture, appellant could only assert that the photograph went to show that the picture had been taken on August 8th, a fact which all parties agreed was undisputed.

The rule is that a trial court's exclusion ³ or admission ⁴ of photographic evidence, like most evidentiary rulings, does not amount to reversible error unless an abuse of discretion is shown. When tendering the photograph at trial, appellant failed to demonstrate any logical relevance said photograph had to any issue in the case. For the first time on appeal he attempts to bolster his contention by arguing that the photograph would have had some probative value on appellant's pre-trial photographic identification.

Although we note in passing that appellant never objected to any of the identification testimony and the photograph thus had negligible probative value on pre-trial identification, we need not consider what relevance it might have had on that issue.

'Where there is any doubt as to the relevance of the evidence offering counsel must specify the purpose for which it is offered or other facts necessary to render it admissible. This is essential for an intelligent objection by opposing counsel and ruling by the trial judge. If he states a purpose for which it is inadmissible, he cannot complain of the ruling of the trial judge in excluding the evidence even though there was some other purpose for which it could have been received.' 1 McCormick & Ray, Texas Law of Evidence § 21 at 19 (1956).

No abuse of discretion is shown. ⁵

The last and most troublesome question presented is whether the court erred in refusing to permit the appellant certain documents in possession of the State in alleged violation of 'the use before the jury' rule. The documents are a police offense report relating to an entirely different offense than the one charged in this indictment and the extrajudicial confession of the appellant to another offense.

The incidents arose in this manner during the trial. Raymond White, appellant's brother, was called as a defense witness and related that when he left home at 1:00 p.m. on July 3, 1969, the date of the alleged offense (which occurred around 2:00 p.m.), the appellant was still at their home. On cross examination, the State sought to challenge his capacity to remember specific details by inquiring about events that may have occurred on July 1st and 2nd. He was asked if the appellant had been home on July 1st 'around 1:30 a.m. or p.m.' He answered: 'I didn't say what time.' The record then reflects the following:

'Q We would like to know where he was about 1:30 a.m. on that day?

'A On the 1st?

'Q Yes.

'A I couldn't say.'

At the close of the cross examination, appellant's counsel asked to 'examine the papers he (the prosecutor) just got through questioning the witness from.' The jury was then retired. The prosecutor acknowledged that the document was a police report of an offense by an unidentified male occurring in a Garland neighborhood on July 1, 1969, that in testing the witness' memory that he referred to the report to refresh his (prosecutor's) memory and then asked several questions of the witness, and at the time the jury was in the jury box. The court examined the document and refused the request made. It was, however, marked for identification and made a part of the record on appeal. The report reflects the offense involved occurred around 1:30 p.m. on July 1, 1969.

The appellant, testifying in his own behalf, related he was home until 6:00 p.m. on the date of the offense, did not know the prosecutrix or the location of Susan Street on which the prosecutrix lived. On cross examination, he revealed he had lived in Garland 13 years and knew the area 'fairly well.' He was then asked if he knew the location of Dairy Road and Cooter's Grocery Store and he answered in the affirmative and acknowledge he had been over to Cooter's. The record then reflects:

'Q You don't know that Susan Street is there a couple of streets up from Cooter's Grocery Store?

'A No, sir.'

At the conclusion of the cross examination and following a conference at the bench, the jury was retired. The appellant then moved to inspect a document which the State allegedly used before the jury in its cross examination.

The document was an extrajudicial confession of the appellant to another offense on July 1, 1969, which the State admitted was the subject matter of the police offense report mentioned earlier. The record then reflects the following colloquy:

'THE COURT: That, Defendant's Exhibit No. 3 is a statement of Clarence White in another case?

'MR. LUCAS: Judge, this is a statement that the defendant gave in another case, and we don't feel like he should be able to look at it in this case, and it shouldn't be introduced in this case in any way.

'We will stipulate that we asked--

'MR. HILL: Yes, I just got some references from it, I didn't read the whole thing or any sentences from it.

'MR. CUNNINGHAM: But you did have it in front of you?

'MR. HILL: Yes.

'MR. CUNNINGHAM: And you read a part and then asked the question, isn't that true?

'MR. HILL: Well, I will stand on the fact that I did refer to it by refreshing my memory as to things such as Cooter's Grocery Store, and Dairy Row, and a couple of those things, but I did not-- I didn't read the whole thing; I didn't even read a whole sentence.

'MR. CUNNINGHAM: But you did refer to it, to certain items, while you were sitting at the counsel table, isn't that correct?

'MR. HILL: Yes.

'MR. CUNNINGHAM: And the jury was in the jury box?

'MR. HILL: Yes.

'MR. CUNNINGHAM: And that after you referred to the Defendant's Exhibit No. 3 you then asked Clarence Wayne White some questions, at least one question?

'MR. HILL: Well, I asked him a lot of questions.

'MR. LUCAS: When he says refer to it, you mean examined it,...