*1 Suppose jurisdiction. no that Pennell applied
moved to another state and for a Roy INESS, Appellant, Clifton Suppose license. driver’s the driver’s state issue license bureau of that refused to read, a license because of a statute which Texas, Appellee. STATE person license shall “No driver’s issue to No. 55612. driving finally who has been convicted Suppose Pennell while intoxicated.” Texas, Appeals of Criminal brought equitable then an in the action En Banc. (which juris- has no chancery court criminal diction) bu- compel driver’s license Sept. license. he Suppose reau to issue him a here, argued, does that he has finally” of
“been convicted DWI in Texas granted probation. because he was Al- though chancery court the other
state, law, county court would like our jurisdiction felony
have no of Pennell’s jurisdiction DWI case it would have to con- judgment sider the effect of the in that court, chancery county case. The our .like law, jurisdiction would have no court at from the in the judgment relieve Pennell felony DWI case-but not have would jurisdiction,
needed that it would any way have asked in to alter that judgment. regularly assess the effect of a
Courts judgment from another court in cases jurisdiction. Enhance- have no example. Suppose ment are an cases charged county court defendant B the infor- with a Class misdemeanor and has alleges mation that he been convicted felony. Texas Penal previously of a See Code, 12.43(b). The defendant con- Section prior is not final.
tends that conviction jurisdiction county court would being con- question, for it is asked to felony not to sider the effect of felony jurisdiction take case. example see Miracle v. For another (Tex.Cr.App.1980) (Onion, P. S.W.2d J.), the court felt free to construe in which Estelle, judgment in Miracle v. 592 F.2d 1979), (5th over which it had Cir.
jurisdiction. county jurisdiction court ap- and we should consider them merits peal. CLINTON, JJ.,
ODOM, PHILLIPS join opinion. in this *2 Cliff, Jr., Odessa, appoint- court
John W. appeal, appellant. ed on Green, and Dennis Atty. John H. Dist. Odessa, Cadra, Atty., Robert Asst. Dist. Austin, Huttash, Atty., State’s State.
OPINION
DOUGLAS, Judge. rape under Appellant was convicted code, V.A.P.C. former Article frightened. on the hood she was Once at twen- punishment assessed his threatening After car Iness kissed her. years. ty-five in front her, her to disrobe kill he forced is that main contention commit oral sod- headlights and of the car evidence. We hold prosecution suppressed attempted point At one she omy upon him. *3 allegedly suppressed that him, beaten caught by was escape suppres a exculpatory. There must be to anal and sexual forced tо submit according to all of of material evidence sion her, positioned while behind intercourse1 reversed. before a case will be the cases Failing to of death. again under threats was not alleged suppressed evidence The satisfaction, he drove sexual achieve admissible, exculpatory. The material or dropped her back to Odessa prosecutrix rever adopt new test that a dissent would complex. David apartment Betty’s off at suppressed when material sal “ be had per- Eades, only was the Betty’s boyfriend, on the outcome ‘may have had an effect when the Betty’s apartment son ” part of omit that of the trial.’ It would the door. He described knocked on trix material evi requires the test which as follows: event suppressed. must be dence Well, shock- opened the door and “A. I woman, her was a ing see there understanding of For a better been, had bloody and nose mouth all given. will be statement of facts detailed mud on her face and all over blood of the inci- prosecutrix The at the time her black mud all over her arm and age, lived twenty-nine years of dent was on, dressed she was clothes she had palsy and from cerebral alone and suffered night. in black that damage. which caused brain a brain defect “Q. Okay. classes special had been in education She really know what then I didn’t “A. And completing the dropped out after until she police. to do. Called employed babysit- as a grade ninth and was “Q. right. All ter, bowling alley attend- housekeeper and “A. That is what I did. ant. emotional “Q. you Could describe prosecutrix question, At the time in calm, state, easy going she was friend, walking together Betty, were and a not or what? While restaurant in Odessa.
to a Sambo’s No, really disturbed. was by Iness “A. sir. She pair approached was enroute some- get like to they who asked if would “Q. crying? Was she conversation, After a thing to drink. brief Yes, “A. sir. un- go with him prosecutrix agreed to “Q. she nervous? Was he was a assumption that the mistaken der Yes, She, like, in just other “A. sir. drove to a The two then Betty’s. friend of words, shaking. just was she engaged they ate and Pizza Hut where she, you state “Q. Was could right. All res- leaving the Upon light conversation. hysteri- seemed or not she whether go taurant, a desire to appellant expressed cal? prosecutrix just talk. The somewhere and Yes, “A. she was. west out of Odessa. agreed and Iness drove happened had “Q. say And did she what the Pizza they left that after testified She to her? vicious, became disposition appellant’s Hut whiskey bot- began Well, to drink from and he made a statement “A. she went open field had pulled say into an her to she Appellant tle. understood somebody and get she coffee with oil well and demanded near an raped advantage of her the hood. took and sit on out of the car her, I know.” really all complied because protested but prosecutrix by organ the male Code, 21.01(3), V.T.C.A., pro- of the female sex Section Penal “ organ.” sex means intercourse’ vides that ‘sexual copy complaint made before prosecutrix was A David Eades testified the by Purifoy signed him the of her the Peace hysterical. gave She name Justice of guardian for call. When he could statement could prosecutrix. him to Such guardian, police. he not locate called for defense to cross- used counsel prosecutrix. The first state- examine When counsel for the defense asked complaint is: ment in prosecutrix see the statements good say that I have “I would like to at- signed night, the assistant district Roy do believe that to believe and torney court that he knew reason informed the Me With Iness Assualt signed. that she did one statement Clifton ” Rape.. . . that counsel for Intent for his and which he introduced furnished happened before reciting After what complaint exception signed bill of is the signed by complaint, parked, after and sworn before Justice *4 her, recites: Purifoy County. J. the Peace A. Ector got “He then around behind me appellant, asking Counsel for when penis then my with his & entered rectum wrote, what he Officer Hammack said vagina & up penis my his finished with report exculpa believed that contained was all back.” this done tory statements. There no contention contained the state- complaint The also that counsel seen for the defense had not ment: the statement the trial. before Dept, of “I have shown Texas The statement also the recita- contains 205343, Roy Clif- picture # Corrections tion, hospital “When Capt. we left the Scott snapshot of this same Iness and also a ton asked if the forced from the attacker her being & I have identified him person rear and she that was This advised correct. used threats person same who force girl problem has a and it is hard to mental me to his demands to make submitt get message a her. . did across to . . She Sodomy. rape place not know had taken where feel facts as “I that contained happened . . but it in a field somewhere.. cause on present probable affidavit this get He forced her to on her with her knees complaint respectfully to base & ground. head on the Due to what I can charging request that a warrant be issued understand from her he forced her to com- with the Roy Clifton Iness offense sodomy.” mit attempt rape to with the commit assault report These statements in the officer’s stat- Felony offense under the criminal exculpatory. very are not The first sen- of the State of Texas.” utes report tence in the recites that the to complaint affidavit was sworn This raped trix told the that officer she was after date of days some two or three from the nurse’s back. The statement ap- offense. It was the commission of the the officer that she could have meant his typed by an officer or under parently rape. prose- rectum does not rule out ap- It contains conclusions that direction. cutrix testified that there was abducted her with intent to commit pellant vagina in the rectum. Here the fact rape. It also statements of contains palsy. witness was victim cerebral She It penis vagina. penetrated that his was such was not articulate. Her condition that used also contains statement Iness compe- defense attacked her that counsel make demands force to her submit his testify presence of the tency outside the sodomy. appear jury. report, From the would sodomy rape. she told and the that These would statements or conclusions rape Eades, outcry she show assault with intent commit she When made it does not out of raped. had been take this statement told him she put penis vagina. state- that he in her any exculpatory does not show that, pho- being conclusion after shown the ments. is not possible jury’s as to effect on the decision tograph that she identified to make person who used “force threats to be considered: sodomy”, me submitt to his demands of sporting theory justice might “A as- not detract from her recitations of the does confession suppressed sume that if the rape. facts that it was trial, used at the first had been com- Counsel for the defense admissible judge’s ruling that it was not judge. plaint and introduced it before guilt might the issue of innocence or He He also knew knew what it contained. jury just as been flouted hospital. He that she was examined at the done if the court had might have been with the hospital introduced the records confession and then first admitted a stage permission penalty of the court at the it from the record. stricken [Footnote of the trial. trial But we cannot raise that omitted] strategy dignity of а constitutional showing
There is
he did
talk
no
of this
right
say
deprival
purportedly
to the nurse who
made the
sporting
Hammack. There is
chance
to Officer
defendant
showing
(cf.
talk
that he did not
to Officer
trial
through the use of a bifurcated
There is no
York,
Hammack before the trial.
Williams v. New
337 U.S.
showing
talk to Officer
did
1337)
denies him due
93 L.Ed.
S.Ct.
report.
who is mentioned in the
Scott
Equal
Protection
process or violates
complaint than there
There was more in the
Amendment.”
of the Fourteenth
Clause
*5
report
might
was
the
have been
in
which
90-91,
at 1198.
373
at
83 S.Ct.
U.S.
appellant.
beneficial to
in
exculpatory material
arguably
The
outcry to
Taking the evidence of her
of three state-
report
Hammack’s
consists
her
raped
she
been
and
Eades that
had ex-
the nurse who
ments attributed'
she
Hammack that
Officer
and the
complaining witness
amined the
in the
raped
had been
the statements
complainant’s
as to the
officer’s conclusion
raped and the
complaint that she had been
story:
be
statements
similar to those claimed to
“_(Prosecutrix)
advised that she
exculpatory,
suppression
there was no
of
the
the back and
raped
had been
evidence.
meant
could have
nurse advised that she
determining materiality
The standard for
rectum.
... At the abоve time
the
of
withheld from the defense is
information
RN Nurse O. Pina and
date
talked with
83,
Brady Maryland,
v.
373 U.S.
of
test she had
advised that from the
she
where,
1194,
(1963),
as
fulness
broader
adopt
will
This Court
approach.
“help
preparation”
rejected as
position
This
has been
a con-
requirement
Supreme
stitutional
relies on Means
also
dissent
Agars, supra:
Court in
espe-
(Tex.Cr.App.1968),
429 S.W.2d
argued
“It has
standard
cially
part
that the
which reads:
impact
focus on
the undis-
should
also committed
error
“Reversible
ability
closed evidence on the defendant’s
or inad-
negligently
prosecutor
where the
trial,
prepare
for
rather than
mate-
evidence
vertently fails to disclose
may
or which
riality
guilt
of the evidence to the issue of
the accused
exonerate
defense,
Note,
importance to the
be of material
innocence. See
The Prosecutor’s
testimony at
as
though
even
not offered
Duty
Constitutional
to Reveal Evidence
the accused’s
though
and even
the trial
Defense,
(1964).
74 Yale
L.J.
diligent
preparation
in his
is not
counsel
unacceptable
Such a standard would be
at 494.
for trial.” 429 S.W.2d
determining
materiality
for
of what
Means,
Brady
recognized
generally
has been
labo-
question
The evidence
First,
hair found on
ratory report
indicating
material
two
reasons.
nor the
neither her own
necessarily encompass in- murder victim was
standard would
defendant’s,
have been admissible
would
exculpa-
criminating evidence as well as
given by the Court
trial. The two reasons
evidence,
tory
knowledge
since
apply
of Means
affirming
conviction
prosecution’s
always
entire case
be
would
case.
equal
with
force to
instant
Second,
planning
useful in
the defense.
Means, Presiding Judge
primarily
approach
such an
would
involve
opinion
analysis
adequacy
an
notice Onion stated that:
given
to the defendant
unidentified hairs
findings
“The
*6
it
always
has
been the Court’s view that
body
the
have
on the
of
deceased
component
process
theory
the notice
of
re-
advanced
due
with the
been consistent
could have
charge
fers to the
the eviden-
defense that someone
rather than
the
knew,
passage
testimony
prosecution
2. The
seems
in
and that
the
dissent
to construe
known,
Agurs
“implicit
perjury,
in
[footnote
which states that
the re-
should have
cases,
quirement
subsequent
materiality
of
is a
that the
In a
of
concern
series
omitted]
suppressed
consistently
might
that
conviction
evidence
have affected the
has
held
Court
104,
knowing
perjured
оf
use of
testi-
outcome
the trial.”
you mean in rectum? No. minutes after the exаmination? over to people turned her Those medical “A. And in the other.” *7 ixiople.” these as Judge opinion Onion’s in Means found report, in the Hammack The ground affirming the convic- separate of a Pina’s corroboration other than Nurse appel- tion that cannot conclude “[w]e testimony, which prosecutrix’ portion results he did not know the lant has shown exculpatory is the conclusion arguably is jury receipt of the prior of this test had prosecutrix that the Hammack Officer at 495. verdict.” 429 S.W.2d Appellant’s cross-exami- sodomized. been record, present shows tried to establish prosecutrix nation of aware of appellant its face that only act committed: sodomy was the report. in Hammack’s pertinent information never truth is he “Q. right. And the All sperm check negative results of tried, have intercourse he never did intro- report whose were in the examination penis or putting his you by with at successfully objected to duction ... part your in private trial, he and which guilt phase is _, matter the truth punishment himself introduced and you and hit you hurt that while he # Defend- phase, Exhibit State’s you, he was things to those did all ant’s Exhibit # 3. other you “A. And the too. person kind of that screwed ass, didn’t he? vagina put your did it in “Q. He never “A. No. front, You have or in the did he? that, you? never claimed have he “Q. What did do? misstating Judge, he is ago I “MR. CADRA: attorney “A. As told a while just claimed just exactly attor- to her. what I told the She ney, exactly happened. that is what that.
“Q. right. He have inter- All never did Let her answer “THE COURT: you peter by putting course with Ma’am. question, Answer question. prick penis your pussy, or did repeat question? you your “A. Would he? you “Q. he he forced say you, I made object Judge, “MR. CADRA: I frightened you he scared and he and language here. not use those She does he told us you put you it in as proper and I believe are terms there behind. for this. terms front, can be done both “A. And it your “THE COURT: I will overrule the, behind. from the ways,
objection long she, first as as I think “Q. right. All you will have to what are you establish talking about. is I the other “A. And that what told “Q. right. All when you What do mean attorney and that is the truth. say you your vagina, you what are put say had “Q. You now that after he talking about? vagina, put your it he it in behind “A. Entered front. are-telling jury what you is that oath? under “Q. What? front, actually it just telling
“A. Entered but he did I’m what had “A. times, just behind both I the other said before. like I told happened, attorney.” times, “Q. He did it behind both didn’t he? issue of Appellant thoroughly aired the Yes, “A. Yes. vaginal penetration had whether of Offi- inadmissible conclusion made. The means, “Q. telling Which are you had been that the cer Hammack rectum, your nothing ap- could added sodоmized happened, that what isn’t it? jury was entitled pellant’s case. “A. No. rape had testimony that a from the find us “Q. Tell what happen. did occurred, report of it did so find. The attorney, “A. Just like told the more than said contained no what nurse attorney ago, just ex- other a while The re- already counsel had. what defense actly He me happened. what admissible, was not material was not it port knees, de- my to kneel down on evidence. exculpatory contained my upon manded me to kneel down sporting theory adopt will not This Court knees. Supreme justice as condemned *8 “Q. Yes? Brady United of the States Court it he “A. And he told me I didn’t do cases of supra. We will the follow kill again would hit me heor would of the the Supreme and this Court kept and threatening me. He me require there must States and United exactly just is happened, what require suppressed evidence to material be attorney, I other like told the the theory following some instead a reversal attorney ago. a while would be might counsel think defense has been meaning though to even what “Q. put [sic], helpful And he him behind material, rectum, not admissible your suppressed he? didn’t 314 likely change testimony
and would not the result of of the will query, best answer the the case. testimony limit the accordingly. See State, (Tex.Cr. 502 813 Bonsai v. S.W.2d Next, appellant argues that State, App.1973); 491 S.W.2d400 Swidell court in failing grant erred a mistrial State, (Tex.Cr.App.1973); Duncan v. prosecutor when the remarked: “We have (Tex.Cr.App.1970); S.W.2d 736 Alvear v. no more exception witnesses and with the State, (Tex.Cr.App.1960). S.W.2d of the medical records which were not ad mitted, we will rest our case in chief.” jury’s request the instant ease the In After the statement was made the court disagreement stated that were in con appellant’s objection properly sustained cerning penetration testimony of the jury. admonished the This was sufficient Although witness. the note mentioned to render the error harmless. State, by examination the court direct Complaint is made of the trial court’s interpreting did not abuse its discretion jury decision to allow the to rehear the disagreement the sentence “we are in con testimony prosecutrix regarding ac- cerning expression this matter” as an penetration. tual During deliberations the disagreement concerning prosecutrix’ jury asking sent out a note to hear the testimony relating penetration. entire testimony over. The court in- properly by request This was later borne out another structed them that they certify must their appellant’s reading to have a second disagreеment request only part cross-examination of her. testimony a witness’ dispute. which was in State, 376 Appellant Pugh relies on The jury following then sent out the note: Pugh, (Tex.Cr.App.1964). S.W.2d beginning “At of where Mrs. however, merely requested the jury _(the prosecutrix) being ques- time of the incident. After these date and penetra- tioned the D.A. about actual motion, provided, were the court on its own disagreement tion. We are in as to her arresting testimony ordered all of the (Em- concerning answers this matter." read, to be none of which related to officer phasis supplied). the time and date of the incident. This was jury The trial judge determined Here, held to be an abuse of discretion. disagreement regarding was in properly testimony court limited the trix’ testimony penetration and allowed and, portion which related to jury to hear the direct cross -exami- therefore, its discretion. did not abuse penetra- nation of her which related was com- Complaint is made that error Appellant testimony tion. re- contends the when the court allowed second mitted heard should have been limited to the direct reading appellant’s cross examination of State, objected examination and so prosecutrix. at trial. reflect, however, that The record does not It is trial court well settled that the portion re After the note read. disputed portion allow a of a witness’ following exchange judge reached the jury to be read to the and refuse occurred: 36.28, testimony. additional Article V.A.C. C.P.; (Tex. “THE I think after read Nichols v. 494 S.W.2d830 COURT: going them I’m to let them have about Cr.App.1973); Johnson v. S.W.2d to send them going 15 minutes and I’m (Tex.Cr.App.1969). home. jury When asks that certain dis send them “MR. CADRA: You can’t re-read, puted testimony be the court must record.) (Discussionheld off the home. proper un request first determine if the (The 36.28, in. supra. proper, If it is “THE COURT: Get der Article presence and hear- following the communica is in interpret court must then *9 tion; decide, discretion, ing jury.) what sections in its
315
stage
to
'as
jury
penalty
at the
charge
said
the
they
“THE
COURT:
understand
V.T.C.A.,
just
through
rape,
for
maybe.
range
about
punishment
were
just
through?
21.02,
you
Code,
aggra-
Are
about
as
aswell
Section
Penal
Code,
V.T.C.A.,
Section
rape,
an-
Penal
would like to take
“FOREMAN: We
vated
21.03,
given.
only
other vote.
instruction
which was the
at trial.
timely objected to this
Appellant
right. That will be
“THE COURT: All
did not
Maldonado
Article
cases
defendant to
late to “the
ed for review.
the court of the trial. Wilkes v.
conversation between the court
regarding
The
mother. He
Cr.App.1974).
erred in
C.C.P., which states:
S.W.2d
“THE COURT: Get
granted
“THE COURT: Ladies and
causes,
“JURY FOREMAN: We have.”
juror
fine.
received other
following in their
tions.)
is
ing.)
regard
“(7)
retired to deliberate
added)
“New
record
where
discussion
returned to
Next, appellant
relate
36.22,3V.A.C.C.P.,
jury,
[*]
failing
Where the
has
trials,
the defendant for the
(The
being
[*]
S.W.2d
(Tex.Cr.App.1978); Young
relies on Article
case.”
juror speaks
conversed with
have
show
sudden
The conversation
in cases of
complained
jury continued
silent,
no other:
grant
ease;
the courtroom and
you
evidence; or
case
harm
We
jury,
illness of the
contends
nothing
presence
reached a verdict?
(Tex.Cr.App.1977);
nor
a mistrial after a
S.W.2d
upon
...”
jury.
felony,
anyone during
of did not
was there
after
any person
requiring
40.03(7),
gentlemen of
injury
a
interpreted
(Emphasis
State,
(The jury
the court
following
delibera-
where
question
present-
shall
a
having
juror’s
in all
hear-
(Tex.
juror
V.A.
has
re-
be
peatedly
Penal
sufficient to
code,
There
mission
would
fense under
aggravated
present
punishment
Section
Provision.
Cr.App.1975),
code but elected to be
jury
859
tion then
In the case
502 S.W.2d
structions
charges the
ates the
Appellant
ant
guilt
tion,
punished under
1975).
v.
robbery
be sentenced
court refused to instruct the
appellant
“From
State,
Casey
pursuant
(Tex.Cr.App.1975),and Jones
judge
agrees to such a method.
Code,
have been
was no
a
one. He
6(c),
or sections
testified to threats
See
choice)
judge’s
robbery. The
by
is whether the
punishment
v.
if the proof
here, although
the former
Finally, error oc appellant claims judgment is affirmed. to versible error. The judge curred when the trial refused 36.22, V.A.C.C.P., juror permitted provides: with a about be to converse 3. Article except presence and trial the case on person permitted be “No shall be with permission court.” person deliberating. it is No shall while *10 DAVIS, Judge, dissenting. “Q. G. TOM Didhe- “MR. BURNETT Appellant contends that the trial cоurt’s [defense counsel]: interrupt, said but. Don’t she provide police report refusal to him with a relating complain- to an interview with the that, please, “THE COURT: Finish ing witness on the the offense night of was Ma’am. error. He maintains he was entitled to “MR. said he tried in BURNETT: She see Brady Maryland, under but, what, vagina please? 1194,10 (1963). 83 S.Ct. L.Ed.2d 215 say to the word but. “A. I didn’t mean requires This contention a review of the ways. Both evidence. “Q. Well. complaining witness testified that Repeat question. “A. picked up she was on the street “Q. going He appellant and taken to eat at a local restau- I don’t know what is on. recall, rant. When left the restaurant you didn’t reach a climax as ultimately drove out of town and you or do recall? unpaved down an He secondary road. “A. He didn’t. complaining forced the witness out “Q. organ You know? Did his sexual car and to disrobe. He then made her your vagina pass the outside of perform sodomy upon oral him under threat you trying? he was In when said attempted of death. The woman then you other words mentioned a mo- away, caught run in the but was and struck ago ways. ment both Appellant brought face. then her back to ways. “A. Yes. He both tried the front of the car where he forced her to “Q. Okay. put did he it in? submit victim’s And anal intercourse. The responses questioning regarding whether Yeah, “A. in from behind. Yeah. penetration vagina were of her occurred “Q. vagina? your muddled.1 yes.” “A. Yes. I mean “regular whether inter- When asked A friend of the victim testified that she performed, replied that the course” she night apartment had come to his appellant mostly “did it from behind.” 2:00 a.m. and stated that the offense about again When of her asked raped. she had been answered, vagina occurred, she “I am not really, prosecutor certain I believe.” The Cross-examination of the witness failed again questioned regarding penetration her change from above. as follows: reveal, however, that the victim had It did Now,
“Q. do Okay. ways, by both at the sher- signed made and a statement you mean the rectum? offense. night on the iff’s office “A. And in the other. into evi- Defense counsel then tendered “Q. your vagina? Is that in exception purposes of a bill of dence for the statement of the victim that “A. Uh-huh. is dated given tor him. This statement “Q. He did it from behind? Defense coun- days two after the offense. “A. Yes. made on then asked for the statement sel “Q. And not from in front? prosecutor night of the offense. Right. “A. of no such state- responded that he knew “Q. your vagina But also? ment, material he and that the written made know, regarding any statements Yes, to, possessed you “A. I’m sure hе tried report. night police was a get vagina, but- grade. palsy ended at the ninth 1. The victim suffered cerebral and a education damage. Her birth defect which caused brain *11 three after the approximately taken time hours complaining witness was then offense, por- that name. This again voir where she stated she and Hammack’s dire night page one signed report slightly made statement on over and a tion offense, not recall she but could and as follows: reads to subsequent that had made I ad- date was “At the above time and that Eaton Deputy date. did feel She City P.D. by 0-5 that vised remember, Deputy Eaton would however. girl the S.O. that had bringing a to testify. to was then called raped. When County and taken into the girl S- I H_ the office the got to Deputy Eaton’s established room. I then was in the radio Deputy that a had talked with Hammack my office where talked night girl on the of the offense and to victim took had report. made a sent to the minutes. She Eaton was then with her for a few This get report. sheriff’s office to re- and which she her face arms blood on 1. port was marked as Court’s Exhibit No. bloody a nose that was from advised It was had left established that Hammack to I then took given had her. attacker department employment of the sheriff’s room took thrеe into the I.D. her about a month the date of the offense. after pictures of her.
Deputy Eaton not know the where- did hospital where “I to the then took her abouts of Hammack at time trial. Pina Nurse 0. Examined R.N. [sic] results of and advised that the counsel then made motion that her
Defense a by Dr. William he be to Exhibit would be advised allowed examine Court’s test No. that she maintaining Brantley. that statements con- The nurse did advise exculpatory hips. tained therein would be as to on the back had several bruises S_ overruled, appellant.2 This motion was did that she was advised [sic] a copy was sealed and ad- back and the nurse raped along forwarded to this with the rec- meant the rec- that she could have vised ords of case. this tum. Capt. hospital “When we left the Scott v. Holloway it S.W.2d S_if had forced the attacker asked was stated: that from the rear she advised her reports subject not generally “Police are a This has mental girl was correct. that pre-trial discovery, to and the State is get message a problem and it is hard to required to to the exhibit them de- to her. across taking prior fendant the officer to 39.14, Vernon’s Ann. stand. See Article I was then to the office where “We came C.C.P.; State, Tex.Cr.App., Gutierrez her. did the statement from Shе take 746; Bradshaw v. Tex. S.W.2d rape place had taken know where the However, Cr.App., 482 233. if the S.W.2d happened in a field some- but that prosecutor actively facts reflect that the statement. where. See negligently suppresses or fails dis- subject picked advised that “She close evidence which exonerate the Roy gave name of Franklin. up her importance be accused or of material subject this that she met She advised defense, is commit- reversible error awith walking to Samboos while [sic] State, Tex.Cr.App., ted. Crutcher friend the name B-C- 113 and authorities cited.” S.W.2d stoped subject She advised that B- talking with and was police report which is before sealed [sic] they she thought were friends “Rape,” she us recites the lists offense address, hear what that she could not advised complainant, victim’s name as she No.,” offense, due to the fact talking were about the date of the “Serial made for con- Defense counsel also a motion gain attendance tinuance as Hammack’s trial. This too was denied. standing behind them. sodomy She advised stitute the offense of rather B_ subjet rape. told this than This to support appel- tends [sic] go position she had to lant’s that no work and he then asked vagina report regard- if she оccurred. The later go get piza wanted to Due [sic]. ing information received from the nurse thought fact that she this was a B_’s only sodomy would also tend to show that friend of it would be she O.K. appellant’s had been committed. Since the advised that she would like that. *12 defense was to show that no “They then went to the Piza Hut on [sic] occurred, importance in- this piza 42nd st. where she ate a She [sic]. emphasized by formation could have had is they ridding advised that then went [sic] judge the communications between the stop around. She advised that he would jury during jury’s deliberations. every gate car at to cheek and see it was He locked or not. advised her that 2, (Ct. Ex.) In Court’s Exhibit No. he place they wanted to find a where jury asked to hear the over. Ct. could talk. jury they Ex. No. instructed part the testimony “She advised that the car was a blue could be read mustang dispute. with blue seat covers and it had that was in bucket got seats. Some where she following Ct. Ex. No. 4 contained lincense number DCG 670. [sic] jury: from the communications gate “After he had found that was “At where beginning [the victim] opened parked the car and forced her by the DA being questioned about to set on the hood of the He car. [sic] disagree- penetration. actual We are in then forced her to take her clothes off concerning ment as to her answers this headlights shinning with the on her. [sic] matter. Then he lay forced her to down on his /s/ Foreman” pants ground. that he had but on the [sic] jury In Ct. Ex. No. 5 the stated that get He forced her to on her knees with jury The then asked to needed a break. ground. her head on the Due to what I hear the cross examination of the victim can understand from her he forced Ct. Ex. No. 6. sodomy.” committ [sic] Ex. state of Ct. No. 7 reflects the page police report The third deliberations as follows: p. day dated 11:00 m. of the same agree. people “We feel this 12 can never summarizes a conversation in which nurse What do we do? Pina, 0. who assisted in the examination of /s/ Foreman” victim, gave following information following Ex. Nos. 8 and asked the Ct. 8a to the officer: questions: “At the above time and date I talked please Judge. “Could talk to the with R. N. Nurse O. Pina and she advised /s/ Foreman” that from the test she had taken from S_ H_ happens “What if we never come to say she could in her agreement. unanimous
opinion peneration
was made in the
[sic]
/s/ Foreman”
rectum.
advised that there was a lot
She
there was no
of blood. She advised that
could not con-
The court answered that he
sperm
up in the test.
also
show
She
jury.
verse with the
there were
bruises
advisеd that
several
Suppression
prosecutor
of evidence
by
hips.
on the back and
also advised
She
proc
due
favorable to the accused violates
X-rays
did not show
broken
guilt
where the
is material
ess
evidence
bones.”
Agurs,
v.
punishment.
United States
97,
2392,
report regarding
The
his inter-
The Cоurt further stated: report that the trial court refuses to allow “We cannot conclude that the evidence appellant access to? allegedly suppressed would have materi- It is true that the victim testified to facts ally appel- affected the determination of which showed sodomy the offense of guilt punishment lant’s or the to be im- had been committed on police her. The posed and that the failure disclose such officer’s which set forth the results evidence, under the circumstances here of an interview with the victim and the presented, prejudicial was so as to war- nurse who examined her relates facts con- rant a reversal on the basis of denial of sistent with the sodomy having offense of process.” due committed, but details no acts re- Further, the Court observed: sults of the examination which would tend “It appears prior receipt to show that raped. the victim was jury’s verdict that the results of the While details in report relating to the test virtue newspaper coverage offense of sodomy are not inconsistent with public was a matter of some knowledge the victim’s testimony, it must be remem- County having Harris and if learned of bered appellant being that the tried for
such test appellant could have mоved the offense of rape. significant I deem it reopen court to allow him to in order the report day made on testimony. introduce other Article See 36.16, relating offense sets forth no facts V.A.C.C.P. We find no evidence in rape. circumstances, offense of the record that made such Under such request. cannot conclude that the undisclosed in- constituted that “Therefore, even if we were to conclude n the actions of the State’s sfc suppression [*] n of the n evidence, attorney n have had an effect on the outcome of the *14 formation trial. been so beneficial to contained appellant would not as to have had an effect on the I would hold suppression that of the trial, outcome of the still reversible error police report appellant’s after the request is not shown in view of the fact that for same was reversible error in light of the appellant has he failed show that did testimony and present issues in the trial. not know the results of the test involved I dissent. receipt before the verdict at of stage one trial.” CLINTON, Judge, dissenting. Means, ease, In the instant unlike there is Disagreeing analysis, findings with the showing no that defense knew counsel of judgment and conclusions and the of the Means, the undisclosed information. In de- Court, join opin- I would be content tests, fense counsel knew of knew Judge writing ion of without Tom Davis clear), (although results when is not issue, separately ap- on the for the results, and, could have discovered the proach majority taken tenor moreover, the evidence was not inconsistent opinion aspect of his subsidiary and one theory with the case. State’s dissenting opinion. facts, duty Under Means’ there could be a with, not even begin majority To has to show that defense counsel did not know actually correctly identified what issue the results of the test before the end of the mark is its trial before the Court. Wide the because of defense counsel’s admission statement, opening “The main contention he had learned of the results from prosecution suppressed another evidence.” source. But Means does not hold shown, attorney appellant prosecuting there is no error unless As shall be showing possession, implic- makes an affirmative that he had expressly disclaimed knowledge suppressed of the facts in the itly any knowledge, then report. possible How would it ever be furnished counsel other than the one he had negate knowledge of facts contained in a is that appellant. The real cоntention ways. writing in be- A: Yes. He tried both question once existence the appellant came known to all was entitled to in? Q: Okay. put And did he appropriately. examine and utilize it Yeah, Yeah. A: in behind. issue the case principal factual in Q: your vagina? vagina whether the yes.” mean A: Yes. I appellant. penetrated penis cross-examination, getting after testimony in On presented by It was first her name, re- response spelling of her married understandably somewhat lead- ing penetration: questions prosecutor: from the visited the matter Now,
“Q: Okay. try perform he did you you testifying were “Q: ... while you? a sex act from behind you could be sure once said that or entered or penetrated that he A: Yes. Q: Okay. Did he [*] whether or not he tried to sexual [*] organ [*] first, your [*] can rectum? you [*] put tell [*] us A: Yes. day? Do went into you remember your vagina saying night. to- matter, Q: That isn’t is the truth Yes. A: it? Q: And did he do try that or that for a Yes.”
while? A: A: About minutes. questioning drew answers that are Further majority opinion, set forth need Q: on, Did you he later can tell us Clearly they here. show be reiterated penetrated your whether or not he penetra- an than lucid effort to claim other vagina organ with after- his sexual entirety, vagina. tion of the In its wards, he in other words did do issue on the ambiguity her regular intercourse afterwards in by reasona- penetration may be considered position? thаt same A: would A: A: Q: Q: [*] he had Now, vagina, there at the What do he did did it from behind. I am not I couldn’t [*] before go gone in say mostly, you you from behind.” say certain your [*] into car did you all mean? sexual your sure, really, [*] were rectum? organ ingo [*] I believe. through I know, know after your [*] that taken to a on her had treatment. ity of her account. stated ty ing ble It she told them persons more gone was shown communication, at the credibility graphically had asked her as a your vagina” Appellant inquired whether hospital hospital consequenceof that “it and, that or, “that perforce, the indeed, had,” and she questions. shyness examination and prosecutrix his private part her the responded *15 reflection response difficul- reliabil- speak- Asked was she Leaving the matter in a happened. what exactly was: “I told them state, prosecutor went plainly uncertain just directly.” questions I answered subjects on to other and then returned to appellant’s request, Whereupon, at questions issue. After few more permitted a voir court excused the and trying about to a climax “both achieve concerning statements dire examination ways,” the prosecutrix the State drew from given, which prosecutrix may that the following: shortly returning after drew from her that hospital a statement at
“Q: organ You his from the she made know? Did sexual office, vagina believing it was “the pass your the sheriff’s the outside that, present- appellant With trying? night.” he was In same you when said state- exception bill a written you a mo- ed for his other words mentioned days some three ago ways. by prosecutrix ment both ment made 322 time,
after
m.,
the offense and called on the State to
the date and
2:15 a.
when he was
produce and
made by
deliver
offense,
advised
first
relates
that
prosecutrix
night
the offense.
observing
actions
accused
the sher-
just
insisted that the one it had
State
office,
hospital,
iff’s
her to
taking
talk-
appellant
delivered to
was the
state-
doctors,
ing
returning
to nurses and
to his
possession.
its
prosecutrix
ment in
tes-
report
and
getting
office
that
tified
she
recall
did not
whether she
forth;
that
trix
is there set
the second is a
made one or
she
two statements but
was
summary of a conversation had with a
sure that Deputy Bob Eaton would know.
m.
hospital
p.
nurse
at 11:00
on the
Whereupon Deputy Eaton was called as a
Omitting
day.
germane
same
matters not
by appellant
witness
and it
revealed
was
issue,
our
first
to
account includes a
Roger
that then Deputy
Hammack was the
examining
conversation with the
nurse who
one who had
to
prosecutrix
talked
and
prosecutrix
said
had advised “that she
report.
had made a
permission
With the
raped
back”
the nurse
from the
which
the court Eaton retrieved from files in the
meant the
believed that “she could have
report.1
sheriff’s office the Hammack
accompanying
rectum.” An officer
Ham-
agreed
deputy
report
that the
was a sum-
prosecutrix
reported
to have asked
mack
mary of
with the
conversations
first officer
from the
“if
attacker had forced her
who talked to
in the sheriff’s
and she
was correct.”
rear
advised
office and that
what
it stated
she
to
the ex-
As
second conversation with
say
him
hap-
and what she claimed had
nurse,
amining
report
Hammack
re-
pened to her.
protested
The State
opinion penetration
flected “that in her
what started out
hearing
as a
to determine
sperm
made in the
and that
did not
rectum”
whether or not
signed
there were two
state-
up
show
in the tests that were made.
by prosecutrix
ments made
had turned into
an
everything
effort
discover
files
By
appellant
his first
ground
error
of the sheriff
trial
in re-
contends that the
court erred
be
should
then
there halted because
fusing
permit
him to
and use
examine
appellant “is not entitled to that kind of
report.
agree.
the Hammack
discovery under any circumstances.” The
83,
Brady v.
83
Maryland, 373
S.Ct.
U.S.
made,
copy
court then had a
1194,
(1963)
215
Moo-
L.Ed.2d
extended
1,
idеntified it as
Exhibit
heard
Court’s
Holohan,
103, 112,
ney
it,
U.S.
S.Ct.
sufficient
de-
authenticate
340, 342,
(1935)
Pyle
323
87,
1190, 10
pra,
guilt
at
83
at
or to
S.Ct.
evidence is material either
[373 U.S.]
if
irrespective
good
required
A
trial is
punishment,
new
L.Ed.2d
...
prosecution.”
testimony
bad faith of the
could
‘false
have affected
likelihood
reasonably
State,
490,
493-
v.
429
In Means
S.W.2d
’
v.
Napue
.
judgment of the
..
(Tex.Cr.App. 1968),
carefully col-
495
after
Illinois,
271,
supra,
at
79 S.Ct.
U.S.]
[360
lecting
studiously analyzing the author-
1178,
report which
description
included a
of
jury
or the outcome of the trial. Accord-
given by
robber
complaining
witness
ingly, I do not devote the attention given to
was erroneously withheld from the accused messages to the trial
jury
court from the
by the trial court at the end of a discovery
significance
and the
attached to
by
them
hearing that was
during
held
the course of
dissenting opinion
Judge
of
Tom Davis.
the trial.5
I believe the
applicable
test
here for the
conclusion he
regard
reaches is met without
Smith,
But unlike
and in line with
to the matter
jury
of
communications.
Crutcher, supra,
116-117,
481
S.W.2d
that,
believe
penetration being
impor-
an
hand,
On the other
majority opinion
tant
issue in the
the credibility and
does
squarely
address the test. Rather
reliability of the complaining witness was
it insists that denial of the Hammack report
obviously of
significance
utmost
and knowl- may
upheld
be
on the basis of one or anoth-
edge and use of the contents of the Ham-
First,
theory:
er different
holding
that the
mack report might well have exonerated
State,
(Tex.Cr.
in Means v.
429
490
S.W.2d
appellant,
certainly might
have affected
1968)
App.
has not been followed-a conten-
the outcоme of the trial.6
of,
view,
tion satisfactorily disposed
in my
by Judge
opinion-and,
Tom Davis in his
Supreme
When the
Court of the United
second, that
its examination and construc-
States casts tests
determining
constitu-
report
tion of the
at issue show it was not
tional violations in
“may
terms of
have had
exculpatory.
accept
I cannot
the manner in
an effect on the outcome of the trial” or “in
which
majority opinion
any
develops the
reasonable likelihood have affected the
theory. Brady, supra,
second
judgment
teaches that a
jury,”
Illinois,
of the
Napue v.
reviewing
264, 271,
360
court seeks to determine
1173, 1178,
whether
U.S.
79 S.Ct.
3
the evidence is
(1959),
guilt
L.Ed.2d 1217
“material either to
or
it means that
prac-
punishment”
States,
Giglio
tice under
v. United
consideration is “inherently sus-
150,
pect”
154,
765, 766,
405
so
92
prejudice
that actual
U.S.
S.Ct.
31
to the accused
(1972),
updated
need not be
L.Ed.2d 104
found.
Rideau v.
basis
See
Louisi-
ana,
Crutcher,
723,
1417,
supra,
reliability
373
83
holds that since
U.S.
S.Ct.
10 L.Ed.2d
(1963);
Louisiana,
663
given
Turner v.
of a
witness
well be determina-
U.S.
546,
innocence,
(1964);
guilt
85 S.Ct.
tive
the realm sively province in this case.
Yet, majority opinion engages in ex- gymnastics to
treme exercises of semantical meanings or that derive from this word phrase in its endeavors to characterize as exer- report exculpatory. Such not cise, finding materiality has been once court, preroga- reviewing
made is the tive of the finder on a new trial and fact rig- well advised to avoid Court is
ors.7 ground
Because of error one is sus- tained, judgment reversed conviction remanded,
and the cause I dissent. PHILLIPS, JJ., join. ROBERTS BREWSTER, Willie James John Ellis Lee, Sutton and Ann Cheri Appellants,
v. Texas, Appellee. The STATE of Nos. 64335. Texas, Appeals Court of Criminal Panel No. 3. Sept. 1980. Rehearing Denied Oct. regimen Ri majority opines of counsel for the accused. Cf. 7. In its scattershot the (Tex.Cr. report dyolph 503 S.W.2d in hands of counsel for could 1974). App. quoting impeach States from United not have been used trial, apparently thereby Agurs, point, majority implying on this report excerpt part of could not understand that the defense not utilize does musing by Supreme formulating thought whatever value counsel have. might specifi materiality writings How and when the be offered standard cally might requested is another what fashion it be used counsel. defense leave exercise that this Court should