Williams v. State, 49733
| Decision Date | 09 April 1975 |
| Docket Number | No. 49733,49733 |
| Parties | Walter Ray WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
R. L. Whitehead, Jr., Longview, for appellant.
Donald R. Ross, County Atty., and David P. Brown, Asst. County Atty., Henderson, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
BROWN, Commissioner.
The conviction is for burglary with intent to commit theft; the punishment, assessed by the jury, ten years' imprisonment.
The sufficiency of the evidence is not challenged.
Three persons were present at the scene of the burglary; the appellant, Robert Wilson, and W. A. Gross. Gross, on the day after the burglary, signed a statement implicating all three in the offense. At trial, Gross, who was called by the State, testified that he and appellant took no part in the burglary, and that the appellant ran away from the scene upon discovering Wilson's intention to burglarize Osburn's Meat-O-Rama. The State then offered Gross' statement for the purpose of impeachment, claiming surprise.
Appellant's only contention is that the court erred in admitting Gross' statement, urging that the State did not sufficiently show surprise.
A party may not impeach his own witness unless the witness testifies to facts injurious to that party's case and the party demonstrates that he was surprised by such testimony. Banks v. State, Tex.Cr.App., 510 S.W.2d 592, Zanders v. State, Tex.Cr.App., 480 S.W.2d 708, Smith v. State, Tex.Cr.App., 479 S.W.2d 311, Wall v. State, Tex.Cr.App., 417 S.W.2d 59.
To demonstrate surprise, the prosecutor must show prior conversations with the witness or prior statements, outside the presence of the jury. Norwood v. State, Tex.Cr.App., 486 S.W.2d 776, Perry v. State, Tex.Cr.App., 464 S.W.2d 660, Thrash v. State, 170 Tex.Cr.R. 97, 338 S.W.2d 447, Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529. The reason for the requirement of surprise is to prevent a party from calling a witness who the party knows will testify adversely, and then, under the guise of impeachment, adduce the testimony which the party would have hoped to elicit from the adverse witness. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. The only showing of surprise in the instant case is the following exchange:
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