*1 692 Lester Brown v.
Cecil State 33,781. 13, No. December 1961 January 31, Rehearing Motion for Overruled appellant. Cheswick, Peter P. Houston Dally, Attorney, Briscoe, F. Erwin G. Frank District Carl E. Douglas, Attorney, Ernst, Houston, Leon District Assistants Attorney, Austin, State’s for the state. judge. McDonald,
Rape punishment, offense; the is the death. testimony that the state’s reflects years age children, of four and the mother employed at finished her work at cafe. She as a waitress nearby meet P.M., to eat and 11:30 and went another cafe estranged had an thereafter, her husband husband. Soon street, where on the woman and went out with another drug fight engaged him and men who beat in a with some away. out into the went car drove The witness him into a hollering screaming men to leave her street, at the other away, walk to started to After drove she alone. husband point. from half about two and blocks her home which was walking home, of her white direction As she up stopped Negro man behind her. She and a came time, the away At this get and that she hollered. she tried to Negro, *2 face, grab- by Negro, slapped another her assisted by the automobile. pushed bed her the hair her inside of and got appellant first She said it was the Brown who and hit her in the mouth the car and he was the one who car, grabbed by They dragged her into the her the hair. then driving purse several took her its contents. After removed blocks, appellant sexual intercourse tried to force her have him The car was then with in the car but unsuccessful. tracks, general place to a in the same driven area, close to the railroad high grass close taken and she was into the weeds body. clothing ripped to the tracks. Her from her had been appellant prevailed companions, The Brown over his after quarreled had which would be the first to have intercourse see her. in with with The struck her the mouth some hand, brass knuckles which he had and she was kicked by companions. Negroes The other held her hands and feet while the had with her. intercourse She related Negro boys her, present after all of the had intercourse with she Upon regaining seemed to lose consciousness. consciousness finding attack, way herself alone aftеr the she made her Crumeby, Negro nude to the home of a Gertie woman. She was Crumeby’s given allowed to bathe at Gertie house and was some called, clothing police to wear. The were and she then Later, hospital. police line-up, removed to the at a she identified being one of those who attacked her. The wit- clothing body ness identified her which had been torn from her religious wearing and also a medallion she had been and which had torn from her neck she was at time attacked. These items had been found where the offense occurred. also She picture purse. a which had been in identified She further upon scrap paper telephone identified which was a number scrap paper hers. This of a friend of had been recovered from which it was admitted and his riding evening. companions had been earlier Amelia Frances Gomez testified that she lived witness the cafe at hotel. The hotel was close to where Dora Ybarra’s argument with the woman husband had had an and where the placed beat him him in an unknown men had automоbile away. pro- This witness stated that she and the and driven screaming prietor of the where she lived heard woman hotel hotel, in front of the out into the street where she and went testified. the events about which she She further testi- observed away fied that after the car drove with Dora Ybarra’s husband walking she saw Dora Ybarra down a car the street and saw pull uр appellant, by beside her. She saw the another assisted Negro, get grab out of the car and witness drag away. hair and her into the automobile and drive She positively appellant, identified and further related that she police day identified him in line-up following the attack. Upon concerning why cross-examination defense counsel she repоrted event, had not an as whether such occurrence common, everything she stated that “in Fifth happens Ward out there.”
Appearing Crumeby aas Gertie testified that Dora early morning Ybarra came to her house in the hours a naked condition. She that Dora Ybarra told her that she *3 raped by Negroes. ten She had Dora Ybarra bathe the herself, gаve blood from her police. some clothes and called the Cumbo, Jr., appellant Eddie James testified that the had night occurred, borrowed his car on the at the offense appellant time he last saw them the and his three co-indictees Murphy together. and Earnest appellant were re- was to turn night, the automobile the same but he did not do so and possession days the witness did not obtain until of it several later. Murphy
Earnest co- testified that the and three early evening indictees took him to his home in the before the time the offense was committed. He testified that his home also place was about nine blocks from the where the and companions forced Dora into the car. Ybarra voluntary The state introduced statement of the following made the afternoon commission of offense. statement, driving In the relates that he was companions, around in an with and Houston automobile certain that: pulled stop sign, up
“When we there was a Mexican to couple fighting in of the woman and of Mexican men front pulled up I cafe. Therе Buick near the cafe. was a black on, hollering ‘Turn, everybody started to man, started drive right got I I turn.’ turned and when back to apartment front of the house on the corner of McKee and Conti, Buick the two Mexican men were the black and street, trying Mexican woman the men were and drag the woman into the car. She broke loose and started running apаrtment down in front house the sidewalk Busby corner, stop towards the told me to next Providence. stopped the car let him I and out so he her. and could catch Busby got again. I and circled around the same block got Providence, Busby When I I back to McKee and could see and Mexican woman on down across McKee in about the Busby arm, middle the bloсk. had the woman and up they got I when drove both the front seat with Busby. Mexican woman in front seat between me and Glynn and Pickens were back seat. picked Busby
“After I up woman, I and the circled the block got Lyons back on and drove on down to West Street and turned I left. drove few blocks on West and then right turned off got back one-half about block from some railrоad tracks and the went dead. satWe there for a gave few minutes and a car came us push. We right drove on down and turned back to the Busby then stop. Busby me I stopped told and the got Mexican woman out and in front of the went car. The Busby woman laid down and tried to have intercourse with her, but he said got Then couldn’t. Pickens on her and her, Glynn got intercourse with and after he finished on her, and had got intercourse with and after he finished I on her and had intercourse with her. *4 finished, Glynn left, Busby
“After I had Pickens and and going try again, said he was to he took the Mexican woman off in trying the weeds to a I next railroad track. was to push car, push by myself I couldn’t I it so hollered Busby help. Busby to right then, to come didn’t come on but in a few minutes he came car ovеr and told me he got had I his licks off. never did see the Mexican woman after that.” appellant driving testified his own behalf. He told of city places companions
around the of Houston to various with his evening preceding earlier in the the time of the He offense. companions gotten further related after all of that had driving alone, of the car hе was that a and Mexican woman stop minute, him stopped hollered at and to wait a that and he get let her into the car. He tried and testified that he to take stalled, and that she her where him she directed but that his way. him He also told she walk the rest of could say positively he did not her He see after time. would witness, Ybarra, complaining whether or not the Dora inter- picked up. woman he did not have that he He said that gave rape course nor did woman to whom he Mexican made appellant repudiated the confession ride the car. The officers, police police gave the officers to the and he said that he going a statement because to beat him. were city depart- police police Four officers with of Houston investigation part of this of- ment testified as to their fense, including in the finding in the automobile which was riding a companions shown that the piece and his had purse paper from of Dora Ybarra. which had come voluntary statement from the The officer who took the testimony that he was induced to rеbutted the of the through force. make the statement threats or Medicine, McGinley, testified that he Dr. Curtis a Doctor morning following upon Dora Ybarra the attack examined chin, a her. He found blood under her bruise inside mouth lip, upper lip deep mouth on lower and a cut inside the on eye. He about the left found numerous scratches and a bruise buttocks, impression an oral on her entire back and on her appearance found right of teeth marks. He breast vagina, microscopic examination scratches inside her vagina sperm. revealed one non-motil smear from the abundantly sufficiently support find the evidence is We jury. charge full The court’s and com- the verdict plete every right gavе to which he was entitled. objections exceptions made to the court’s were no There charge presented. requested charge, no brief, exception, formal two bills Appellant grounds for upon three reversal: relies was not 1. That testifying case. conten- of this This prior to sworn *5 appellant’s by Motion for affidavit attached to raisеd tion is Trial. New was not the name of the indictment, that Dora Ybarra
2. He contends alleged and that she complaining witness as by by was not this known that name. He also raises contention affidavit, Trial, appellant’s an attached to Motion for New injured party which the that her name was Olivia Ybarra swore alleged or Dora indict- Olivia Galviz Ybarra as ment. attоrney improper
3. That of the state’s and constituted reversible error. original
We observe that the Motion for Trial was New filed January 27, 1961, the for New Trial was filed amended Motion February 15, 1961, granting on file the court leave to this setting hearing amended Motion for Trial on it New for 3, March 1961. The amended Motion for Trial New was heard 10, 1961, on by Although March set the trial date сourt. judge
trial heard the amended Motion for New on Trial twenty-sixth day filed, opinion after it was it is our already by amended Motion for operation Trial New been overruled 8, 1961, of properly law on March and that it was not court, before trial nor is it before this Court for review. In Brinkley State, 855, 2d we held: S.W. possible exception
“With the of Atkinson v. 299 S.W. 951, 2d the decisions of this Court undеr Article V.A.C. C.P., are to the effect for motion new amended by operation motion for new trial is overruled of expiration period twenty days law at the of within requires which statute to be determined the court.” observe, nevertheless, gravity We do on account of the presented, complained the case here if the matters properly his аmended Motion for New Trial were review, they present before us would no error. The record duly sworn, prior shows that the testifying; Dora thus, contention this would be without merit.
During case, attorneys the trial of the all witnesses and re- complaining witness Dora ferred to Ybarra. There was slightest suggestion not the that that was not her name. When Crumeby’s witness went house im- Gertie following mediately offense, the commission she told Crumeby that her name Gertie Ybarra. inves- police only by tigating officers knew her that name. She was *6 by hospital
treated the doctor under the name of the at grand jury by Ybarra. knew her that name. The com The plaining witness, herself, upon the that name trial testified was Dora Ybarra. There is one shred of evidence not by comрlaining statement of facts that the witness known any that name other than Dora Ybarra. the express We view all, raised, properly while this if it at issue was was raised not all of the evidence that name of wit shows the the the name ness at time of the offense was Dora and such properly alleged provisions the Article under of V.A.C. Appellant’s 2, by exception C.P. formal bill of No. which by error, qualified attempted preserve to this was refused and court, formally excepted did to which the by bystanders’ Therefore, nothing presented file a not is bill. Tex. this bill the Court to Wortham review. Rep. 164, 333 Cr. S.W. 2d 158. appellant’s next to that the
We turn our attention contention argument The of state’s counsel was reversible error. by request argumеnts not of counsel transcribed did be containing the reporter, the court no statement of facts argument appellant’s of counsel or the counsel either the state’s attempted preserve has is filed this court. The to by filing exception, formal matter a formal bill of which is this exception exception presented This formal of bill of No. 1. bill by by givеn for the reasons the trial was refused by qualified appellant did as the record. The court shown exception accept qualification bill of not the court’s of his formal bystanders’ formally excepted qualification. A bill to by body appellant, complete filed substance was which, omitting parts, reads as follows: formal jury attorney argued ‘the distriсt to “The assistant They II died I and not die in vain. dead War did World give everybody democracy; died to make sure you give this man death Their demand that freedom. deaths thing he in this case. the chair for the did defendant, Brown, attorney “Whereupon for Cecil L. prejudicial objected Judge such statement because ‘Stay in inflammatory. Judge simply stated jury pay any not to аtten- to tell the the record’ and refused for the argument, requested counsel tion defendant. argument
“This was not invited the defendant since argued any touching jury counsel had before matter any all. I or II’ war at ‘dead Wars No. jurors very appeared “Some of the to be much interested *7 argument.” this bystanders’ state, way
This bill inis no controverted the appears bystanders’ inasmuch itas from thе record that the bill day following qualification was filed on the of 15th the court’s appellant’s bystanders’ exception. the formal bill is of bill therefore before the Court for its consideration. object ruling
1. The not did to the of trial court, certainly except ruling he did not to an adverse of showing ruling. court of dissatisfaction It is court’s necessary that showing. a formаl bill make Grizzell v. such State, Rep. 362, 816, 820; 164 Hampton Tex. Cr. 298 2d v. S.W. State, 488, 489; State, Page 871; 248 S.W. 2d v. 281 S.W. State, 698, Pounds v. 81 2d S.W. 700-701. how, manner,
2. The bill not does or in show what argument State, improper. 263, In Pombo v. 279 S.W. it was said: 5,
“Bill exceptions of argument of No. of attorney, present any state’s showing does not facts how or argument improper. manner what The rules in regard exception understood, to bills of are well is al- and it ways held that the bill contain must sufficient man- facts to complained ifest error of in order that this court be not compelled to search of the statement facts or the record other- complained wise to if ascertain the matter ex- of in bill of ceptions be sound. record,
“Finding judgment no error will af- be firmed.” argument
It is difficult to understand how thе could have jury influenced in this This case. Court has held lan- may objectionable may guage illogical, which be so be fanciful extravagant require as to a conclusion that it could not have arriving jury State, influenced the at their verdict. Coats v. 891; Bryan State, 184; State, S.W. v. S.W. 2d Cross v. 217, 219; Stalcup 89 S.W. 2d v. 92 S.W. 2d 445. State, supra,
In Coats it was said: complains at- bill of “Another torney. district quote: From it we
“ defendant, ‘Gentlemen, you if fail convict this should Liberty hang shame; you as would her head in Statue plant ground upon well tear down the courthouse and patch it, it corn could which stands so use liquor public; manufacture serve to the the sheriff of it commission, county this had as well surrender because naught.’ acts will be may
“Though flight imagination propriety with this eloquenсe logic, example be cited nor an a model of jury respon- cannot be assumed the verdict extravagant statement of counsel rather than sive *8 reviewing court, In the upon the facts the trial. adduced having the of the trial court and the evi- verdict sanction estimating important dence are elements the effect heard which, though imprоper, are not ob- remarks counsel viously harmful.” argument complained do not feel that the of reflects revers-
We Appellant’s ible error. contention is overruled. carefully have consideration all informal bills
We any exception find no merit of them. judgment of the trial court is affirmed.
ON MOTION FOR REHEARING DICE, Judge. pros-
Appellant again urges error as reversible pointed As case. ecutrix not sworn as a witness original that the witness was opinion, the record reflects in our duly by appellant question in his was first raised sworn and the a verdict has is the rule that after motion new trial. It time, given, complain first that a witness is for the too late 392; Ed., 370, p. 2d not 1 Branch’s Ann. P.C. sworn. sec. 2d 272. Cr. R. S.W. Spriggs Tex. prosecutrix While the issue as to the name of the properly appellant, again the record raised we have reviewed name, alleged and remain convinced that her the indictment was shown to be name which she was pleading proof and no known variance exists between the with reference to her name. again appellant’s complaint
We have also considered to the argument of state’s counsel and find no reversible error therein. rehearing
The motion for is overruled.
Opinion approved by the Court.