White v. State
| Decision Date | 16 July 1969 |
| Docket Number | No. 42181,42181 |
| Parties | Kenneth Dwayne WHITE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Martin & Richie, by Gene Richie, Wichita Falls, for appellant.
Jim Phagan, Dist. Atty., Wichita Falls, and Jim D. Vollers, State's Atty., Austin, for the State.
The conviction is for statutory rape; the punishment, twenty-five years.
The record reflects that appellant, twenty-eight years of age, went to the home of prosecutrix, fifteen years of age, at approximately nine o'clock in the evening on the pretext of taking her to get a dog. The mother of prosecutrix gave her permission to go with appellant provided she returned within fifteen minutes. Instead of going for the dog, appellant drove to a country road near Electra and stopped. Prosecutrix tried to escape, but appellant caught her by the hair, twisted her arm and forcibly penetrated her private parts with his penis on four separate occasions. In addition he committed several unnatural sex acts upon her, and forced her to commit sodomy upon him. After keeping prosecutrix out for some two and a half to three hours, appellant took her home. She told her mother what had happened.
Dr. D. E. Fletcher testified that he examined the prosecutrix, found spermatozoa in the vagina, and was of the opinion that she had recently had sexual intercourse.
In the first ground of error complaint is made because the assistant district attorney asked the mother of the prosecutrix whether or not appellant was married.
The question was not answered and was withdrawn. The court instructed the jury not to consider the question.
Appellant relies upon Thompson v. State, 168 Tex.Cr.R. 320, 327 S.W.2d 745. It held the proof that the accused in a rape case was married was prejudicial error. There several witnesses referred to Mrs. Otis Thompson. An officer was permitted to testify that he had gone to the home of the accused and talked to a Mrs. Otis Thompson. The court held that this amounted to proof that Thompson was married, and the case was reversed.
The question propounded in the present case should not have been asked. However, there was no answer or anything in the record to prove or indicate that appellant was married.
An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Wheeler v. State, Tex.Cr.App., 413 S.W.2d 705, 707; 5 Tex.Jur.2d, Sec. 437; McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29.
No harm or injury is shown. The first ground of error is overruled.
In the second ground of error complaint is made that the prosecuting attorney attempted to offer into evidence a certain letter written by the prosecutrix during the argument of appellant's attorney
Mr. Richie, one of appellant's attorneys, argued to the jury that the girl's mother testified that she did not get the details from prosecutrix for a day or two and that the mother said that prosecutrix wrote a letter, and further:
'MR. RICHIE (Appellant's counsel): We would have sure like to have seen it, your Honor, during the trial of the case.
'MR. PHAGAN: If the defendant ever asked for it, Your Honor, we will be glad to produce it.
'MR. SPENCE (Appellant's counsel): It is a little bit late, your Honor, for him to be trying to make out his case, and we object to counsel making such a proffer.'
Reagan v. State, Tex.Cr.App., 423 S.W.2d 335, cited by the State is in point. This Court held that it was not reversible error for the State to offer into evidence a statement of prosecutrix when defense counsel requested to see the statement.
In the present case there is no showing or contention that the jury read or heard what was in the letter. No reversible error is shown; the second ground of error is overruled.
In the third ground of error complaint is made that the trial court would not permit appellant to testify at the penalty stage of the trial about his relationship with prosecutrix on and before the night of the rape to...
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