Williams v. State

• Decision Date: 30 March 1955
• Docket Number: No. 27489,27489
• Citation: 279 S.W.2d 348,161 Tex.Crim. 500
• Parties: Billie Joe WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 348

279 S.W.2d 348

161 Tex.Crim. 500

Billie Joe WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 27489.

Court of Criminal Appeals of Texas.

March 30, 1955.

Rehearing Denied May 18, 1955.

Joe H. Jones, Lester L. May, Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., William F. Alexander, Asst. Dist. Atty., Charles S. Potts, Asst. Dist. Atty., Dallas, Leon Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Under an indictment charging that with lascivious intent he knowingly and intentionally exposed his private parts and genital organs to a named female under the age of sixteen years, appellant was found guilty and his punishment was assessed at two years in the county jail. His application for suspension of sentence was not granted.

The named female, who was 15 years of age at the time of the alleged offense, testified that appellant drove very slowly by as she and two other young girls were walking toward her home, and with one hand on the steering wheel and the other on his private parts, lifted himself up in the seat and exposed his genital organs and sexual parts.

She further testified that they proceeded to her home, some two blocks away, where she reported to her mother what she had seen, and they went outside to see if he came back; that he did drive by again and they took the license number and her mother called the police.

Appellant was identified at the trial by the three girls, the other two corroborating the testimony of the girl named in the indictment. They each testified that they had seen the car previously when the driver 'drove close to the curb real slow' a block away. This was before they were joined by the third girl.

Each of the girls was 15 years of age. They were dressed in blue jeans and plaid shirts and were going to play ball.

Appellant, who was arrested as a result of a bulletin upon the basis of the car license number, testified that he drove past the three girls and noticed that one of them had a baseball bat and 'they were kinda talking to each other and kinda dancing around a little bit' and he drove around the block 'just to see the show they were putting on.' He denied that he exposed himself to the girls.

On cross-examination appellant was examined and testified in part as follows:

'Q. You saw these girls and liked the show good enough that you circled the block to get a better look? A. No.

'Q. Isn't it a fact that they weren't doing anything and the only reason that you circled the block was because there were three girls there? A. No, sir.

'Q. Were they doing something unusual? A. Well, they was dancing around.

'Q. Dancing around? Now, as a matter of fact, aren't you a sexual deviate that gets your thrills exposing yourself? A. No, sir.

'Q. Isn't it a fact that you drive around frequently doing that sort of thing? A. No, sir.

'Miss Carp: Your Honor, I object to that. If he has a record, let counsel introduce it into evidence.

'The Court: I sustain the objection. I instruct you to disregard that, gentlemen. Just try one case at a time.'

Formal Bills of Exception 4, 9 and 10 are predicated upon the record set out in the above quoted portion of the statement of facts. Bill 9 complains that the questions by the prosecuting attorney carried the implication that appellant was guilty of the conduct inquired about, and were calculated to impress the jury with the view that defendant had been guilty of the specific acts of misconduct which were not connected with the charge for which he was on trial. Bill 10 complains that the cross-examination 'was illegitimate because the questions were not based or predicated upon an indictment or a previous conviction.'

In both of these bills it is contended that the instructions of the court to the jury to disregard the questions did not cure the error.

Bill No. 4 complains of the remark of the trial judge, made in connection with his instructions to disregard, 'Just try one case at a time', the contention being that the remark was prejudicial and in violation of Art. 707, C.C.P.

Bill No. 4 reveals that no objection was made to the court's remark, and there was no request made for its withdrawal or for an instruction to the jury to disregard it, and no motion for a mistrial.

The matter being first called to the trial court's attention after the verdict, with no opportunity afforded the trial judge to cure the claimed error or to declare a mistrial the remark does not constitute reversible error.

There is no arbitrary rule that the accused may not be asked on cross-examination as to prior misconduct.

The fact that such conduct would tend to show other offenses would not alone condemn the testimony. If the guilty intent of the accused on the occasion is doubtful or disputed, proof of the commission of other crimes by the accused, which proof tends to establish intent, is admissible. Watson v. State, 146 Tex.Cr.R. 425, 175 S.W.2d 423; Adams v. State, 95 Tex.Cr.R. 226, 252 S.W. 797; Thomas v. State, 103 Tex.Cr.R. 671, 282 S.W. 237; Brown v. State, 150 Tex.Cr.R. 2, 198 S.W.2d 580.

It is not necessary that the misconduct inquired about should have resulted in prosecution and conviction, if it was offered for the purpose of showing intent.

Here the evidence was not offered on the state's main case, nor by witnesses other than the accused, and not until he had testified that his intent was only 'to see the show' and that he did not expose himself on the occasion.

We need not here determine whether or not evidence of prior acts of indecent exposure were admissible, for the trial court sustained the objection and instructed the jury to disregard the questions. We do hold that the fact that the State attempted to show by the accused that he frequently drove around exposing himself and was 'a sexual deviate that gets your thrills exposing yourself', in view of the witness' negative answer and the court's instruction to the jury to disregard the question, does not call for reversal.

In Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426, 429, proof of a prior act of exposure and indecency was admitted, but withdrawn and the jury instructed to disregard, and we held that reversible error was not shown.

No objections were addressed to the court's charge, and the complaints that certain instructions were omitted cannot be considered.

The evidence from the standpoint of the State sustains the verdict and we find no reversible error.

The judgment is affirmed.

MORRISON, Presiding Judge (concurring).

I concur in the affirmance of this conviction because I do not construe the questions asked as proof of extraneous offenses. It is only where a question is so stated that it amounts to an assertion of fact and implies the commission of another specific offense that it constitutes reversible error. Wharton v. State, 157 Tex.Cr.R. 326, 248 S.W.2d 739. The questions named no dates, places or parties and were not, as I view them tantamount to proof that the accused had committed any specific act at any specified time or place in the past.

On Motion for Rehearing

DICE, Commissioner.

Appellant, in his motion for rehearing, insists that reversible error is shown by Bill of Exception No. 3, which bill we did not discuss in our original opinion. The bill certifies that appellant called his wife as a witness and complains of her cross-examination by the State on matters which were not pertinent or germane to the testimony given by her on direct examination. The trial court, in approving the bill, certifies that no objection was made to this cross-examination.

It is the appellant's contention that such cross-examination constituted fundamental error in that it was in violation of Article 714, Vernon's Ann.C.C.P., which provides that a husband and wife shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other. Appellant contends that he could not waive his wife's disqualification as a witness against him and was not required to object to the improper cross-examination. This contention is overruled.

An accused will not be permitted to introduce his wife as a witness in his behalf, remain silent during her cross-examination, and secure a reversal in the event any part of her cross-examination impinges upon the rule forbidding the use of the wife as a witness against her husband. Ward v. State, 70 Tex.Cr.R. 393, 159 S.W. 272; Willingham v. State, 94 Tex.Cr.R. 596, 252 S.W. 530; Johnson v. State, 95 Tex.Cr.R. 483, 255 S.W. 416; Givens v. State, 98 Tex.Cr.R. 651, 267 S.W. 725; Cole v. State, 119 Tex.Cr.R. 1, 44 S.W.2d 722; Glover v. State, 142 Tex.Cr.R. 592, 152 S.W.2d 747.

We have again considered the matters complained of in Bills of Exception Nos. 4, 9 and 10 and remain convinced that these bills do not reflect reversible error.

The motion for rehearing is overruled.

Opinion approved by the Court.

DAVIDSON, Judge (dissenting).

Being unable to agree with my brethren that this conviction should be affirmed, I respectfully enter this, my dissent.

The facts as I understand them from the standpoint most favorable to the state may be stated as follows:

The alleged injured party, a fifteen-year-old girl, and two girl companions of about the same age were at or near the corner of Lagow and Penelope Streets in the City of Dallas when, according to her testimony, appellant drove by in an automobile at a slow rate of speed and exposed to them his privates or genital organs.

As to how the exposure occurred, I quote from the testimony of one of the girls:

'Q. And will you describe to the jury just how he exposed himself? A. He just raised up in the seat.

'Q. He raised up in the seat? And where were his hands, if you noticed? A. One was on the steering wheel and the other was on his private sexual parts.

'Q. On his private genital parts? A. Yes.

'Q. What are the facts as to whether his car was stopped or moving at that time? A. It was...