*1 264 fifty ($50.00)
“offense of theft over the value of dollars, and no/100 felony.” respect. overrule contention in this Remaining properly disposed convinced that we cause originally, appellant’s is overruled.
Jules L. Laird v. State Appellant's (Without Rehearing Denied May 12, 1954 No. 26,874. March 17, 1954 Second Motion for Written Opinion) Rehearing June [1954] Denied L. Graves, Jr., Houston, W. Duggan, B. and Edmund King Attorney, Frank Briscoe Scott, District H. William Wesley Houston, and Haynie, District C. Assistants *2 Austin, for the state. Dice, State’s Judge. MORRISON, minor; punishment, exposure a the
The offense is indecent years. three girl, thirteen-year that on the
Prosecutrix, a old testified walking day the question, home from in while alone near Tele- show, passed parked Drive she a on Stanwick Cadillac sitting Road, appellant phone the back was on that hand. The a motion of his front seat and to her beckoned passed he exhibited as she the automobile witness stated that immediately parts there- private her. that his She testified Reynolds and away, Mr. Mr. appellant and after drove up if her Lemmon and her that man had bothered drove asked appellant she had and told them what done. Corporation, employee
H. W. United Gas traveling Reynolds Mr. in an were auto- he Telephone day question, Road in that he mobile on the ob- Cadillac, appellant standing a served the rear of near the of was some short distance to the rear the auto- walking away ap- mobile it. The witness stated open parts pellant’s private were trousers were and that his Telephone up The Road visible. witness stated that he drove turn, doing a until he so drove could make and after he spot ap- appellant had to the pellant where he first observed
got away. Lemmon testified in his and drove automobile companion they that he and area until drove around time, open, parked door was saw the Cadillac its second girl appellant moving therein, that the and the little was about coming opposite side of the street. wit- toward it on the high they a up left at ness stated as drove speed, of he took the license rate number girl, made an effort to talk to the who said the call her to him. companion Reynolds
Mr. of his corroborated the except exposure, as to he and which first did not see testify, evidently prosecutrix. did not seen was that however, they drove Cadillac behind opened sort of lant gesture the door of the automobile and some girl. police Officer Noe the Houston testified that talked to approximately
the appellant’s for writing, his office an hour and reduced quote: confession from which girl was, nor, “I do know who this had I ever seen her be- Anyway, I got fore that recall. I position circled around and girl past where the would walk me in parked. I where was girl got up my my ‘penis’. even with I When I had up car showed her already my penis my got taken out trousers she before get even with I just me. did not out displayed of the car. I my penis clearer, there in the car. To make this little I what really just did leaning in the seat of car raise exposed my penis girl. the seat and why I don’t know I my penis, wanted to show her unless believed that seeing would a kick out of it.” *3 appellant, testifying behalf, The shortly in his own stated that day question before the gonorrhea, in he had contracted place at the testimony time and mentioned in the of the state’s witnesses he pain his automobile because of in and private part, in order to just prosecutrix passed examine his that the get towel, as he reached in the rear of his to automobile only privates and that the motion he made was to cover his girl. after he saw the
Concerning confession, appellant the the testified that the police police had called him come down to the station on placed afternoon it was made and that he was in a cell until he Appellant signed was taken in to see Officer Noe. testified that he the statement because the officers would not let him use the telephone, they because led him to believe that he was chargeable offense, with a serious worried because he was about unattended, his business which he had left and because he want- jail. ed to out of appellant by Dr. Watson testifid that had been treated him gonorrhea days prior day question. three in to the by shall now
We discuss the contentions raised coun- earnest sel in their brief.
Appellant sup- contends that is evidence insufficient to port testimony thd conviction and that wit- state’s guilt says nesses refutes his rather than establishes it. He testimony we should not consider the of Lemmon about the first exposure testimony not, part because this of as before, Reynolds. prosecutrix He have noted corroborated or says testimony further there is inherent conflict of Lemmon and on the one hand sitting place appellant in that men under the other steering sitting prosecutrix places wheel while the seat, says on the of front which he would have physically impossible expose po- it for him in such a himself discussing inconsistencies, sition. In these which are similar to us, many others we find in cases that before come fact, does not mention the In nowhere in confession. liberty the brief do get it we find mentioned. are not at We to for- ques- about it as There can be no serious voluntary confession, tion of amply nature of the and it is corroborated of witnesses. exception
Two bills of of relate the refusal the court to photographs. admit into three evidence following his arrest he drove his Cadillac to where it had parked day question
been pictures on the and took it. The of pictures which were tendered are attached to the bills ex- ception for They empty our examination. show an late model parked paved tudor Cadillac on a completely street in a not city town, nothing built residential section aof more. We must refusing decide whether the error the court pictures, error, admit such if gravity it be is of sufficient call for a only reversal of passingly this conviction. areWe objection pictures concerned to whether proper. are, however, deeply interested in whether or not the materially injured by lant’s case was their exclusion. *4 accept
would have us pellant ap- the statement of the seat, ignore was seated on the back of the the remainder evidence, of the pictures and conclude that were material to thirteen-year quote show old was in error. We again confession, really just did “What raise leaning in the seat of exposed my penis over the seat and girl.” any to this We fail to see how could have refuted this evidence. complains next proven. venue not Article
347, V.A.C.C.P., provides that, unless made an issue in the trial court, presume this court shall proven. that venue was The cases by appellant cited liquor were either violations of the law where it was dry not shown that the area was in which cases venue during was made an application issue the trial and have no to the case before us. Exception complains overruling
Bill of 11No. of the of the newly motion for new trial based discovered evidence. It is during recited therein trial the witnesses Biggs Reynolds and placed Officer under were the rule. The bill Guinn, contains an affidavit of a ap- character witness for the pellant, during which states that the trial Lemmon came out of the Biggs courtroom and asked Officer if he should brief Reynolds questions on what courtroom, were asked Biggs Officer made some hear, answer which the witness did not and that thereafter Lemmon a conversation did which also not hear. The affidavit further recites that anyone the witness did not tell about this occurrence until after trial was over. grasp has failed to the full effect of rule. provide V.A.C.C.P., placing Articles 644 for the wit- under the rule. it nesses This court has held error reversible objection permitted testify a for to witness be where rule a has violated. It not been is violation the rule which error; ruling constitutes reversible it is erroneous objection court on an which we review. 647, V.A.C.C.P., provides
Article for the instructions to be given requires witnesses officer who learns of a report violating violation to same the court so that may punished contempt. witness be most, At all that reflected a is this bill is matter which might gives an intimation that the rule have been rise vio- Biggs question negative, If lated. Officer had answered the in the do, duty as it was his the witnesses had talked about matters, personal the rule would have been violated. The qualified certifying court the bill the rule had not been violated.. may, it
Be that we know of no case holds that violation of the rule known to the court for first time new on motion for trial has been held to reversible error. It be object duty party either given. witness when
Finding error, judgment of the trial court no reversible *5 is affirmed. appellant’s
ON
WOODLEY, Judge. motion for instructed to his attention Appellant our directs prove had failed to that the state insisted wherein he verdict venue. find again that venue the record examined have place prosecutrix described sufficiently established.
was being Drive.” “on Stanwick as larger she first saw where street and better known there was a that She Road; appellant’s car Telephone that there which was block; he was still of the the middle that Drive about Stanwick up and Lemmon came there when witnesses Road, Telephone then to car, turned toward he started his right. “just the west of he saw
Lemmon testified that Telephone Telephone Road and a Road on the intersection thought gravel either Stan- he Westover street” which Road, Telephone wick; road off that was on the side Road; facing away Telephone that he saw from walking away genitals prosecutrix exposed and lant’s saw time; after that man the car at one and the same from the intersection; companion passing, returned to that he and his facing parked on a side street he later saw the Cadillac car walking away Telephone Road and saw the car; occupant car of the Telephone Road toward the car; getting step appeared out to be or about him.” rapid came rate as we behind that he “took off at following testimony. gave later He
“Q. you on Tele- out there The intersection that described County, phone Road, place in Harris here Mr. Yes, Texas? A. it is.” testimony venue of the find sufficient to establish
This County. case Harris ruling judge again urges trial deprived ma-
excluding him of car of his Cadillac testimony for reversal. terial and should call theory pictures were appears It to be showing pro- impossibility of purpose of admissible for the “sitting of the seat” on the back he was secutrix’ exposed himself to —the front seat of his Cadillac—when her.
270
If literally is to be construed to mean that upright 'position in a was seated normal on the back has, the front of an seat automobile which as the evidence shows, top, apparent photograph a hard it is that no testi- mony required as measurement would be to show that think, however, witness mistaken. portion original quoted opinion confession our and his testimony explain girl’s are inconsistent with the little description position of his car when she sexual saw his parts. testified that he his car on Stanwick off Telephone Road; that he “reached back over seat to board,” coming towel off the floor and “when I was seat, coming along I saw the little the side of the only try myself street.....The I motion made was to cover got until back down into the seat.....” We remain convinced that the evidence is sufficient to sus- tain appeal disposed properly the conviction and that original of on submission.
Appellant’s is overruled. Martin
Carl v. State 26,982. May 5, No. 1954 Rehearing (Without Opinion) Denied Written June Tyler, P. Pope, Alex for
Wesley Dice, Austin, State’s state. GRAVES, Presiding Judge.