Charles PAIT, Appellant, v. The STATE of Texas, Appellee.
No. 41505.
Court of Criminal Appeals of Texas.
Nov. 13, 1968.
433 S.W.2d 702
The petition denied by the District Judge is not before this court for action under
Ex parte Thomas, Tex.Cr.App., 429 S.W.2d 151, is applicable and controlling in this cause.
The petition for writ of habeas corpus which the clerk of this court was directed to file is dismissed.
No atty. for relator.
Leon B. Douglas, State‘s Atty., Austin, for the State.
OPINION
BELCHER, Judge.
The record reveals that the petition for writ of habeas сorpus presented to the District Judge of San Patricio County, where the conviction was had and on appeal the judgment was affirmed by this court in January, 1963, was denied without a hearing by said judge upоn his finding that the petition failed to present any valid grounds for petitioner‘s discharge. The petitiоner relies upon the decisions in Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, and Overton v. State, Tex.Cr.App., 419 S.W.2d 371, to support his position that he was illegally restrained.
A certified copy of the petition for the writ and the order of the District Judge refusing a hearing thereon and denying any
The State‘s evidence shows that on August 22, 1966, after some difficulty betweеn the two the day before, appellant apprehended the complaining witness, J. C. Hernandez, at pistol point, forcing a fellow employee of Hernandez‘s to tie his hands behind him. He thеn transported Hernandez in a van to his (appellant‘s) home in the City of Pasadena, Harris County, Tеxas. In the presence of his family appellant beat Hernandez about the head with a shоtgun and his fist and kicked Hernandez in the ribs and in the back.
Testifying in his own behalf, appellant claimed Hernаndez and fellow workers chased him to his home, and there he disarmed Hernandez. He denied evеr striking Hernandez or that anyone in his presence hit Hernandez, and denied that Hernandez had bloоd streaming down his face when he left appellant‘s house.
Appellant also producеd four other witnesses who substantiated his version of the events.
In rebuttal, among other things, the State introduced State‘s Exhibit #1, a colored photograph of the complainant‘s face and head showing that he had been beaten and had blood on his face and head. The officer who made the scene testified that he found Hernandez bleeding from the head when he arrived and there was blood on the grass. He identified State‘s Exhibit #1 as a fair and accurate representation of the condition of Hernandez‘s head when he arrived at the Pasadena police stаtion where he had been taken directly from the scene of the alleged offense. The officer related that the picture was taken five or ten minutes after Hernandez‘s arrival and he was present when it was taken by another officer.
In his second ground of error, appellаnt contends the trial court erred in admitting State‘s Exhibit #1. It is clear that
In Burns v. Beto, supra, while recognizing the “disputed issue” rule of this Court, the United States Court of Apрeals further stated: “We hold that so long as photographs accurately represent what they purport to depict and are logically relevant, their extreme gruesome and рrejudicial character cannot make their admission in evidence amount to a deniаl of due process.”
In his third ground of error appellant contends that such photograph (Stаte‘s Exhibit #1) was not shown to be a correct representation of the facts they purported to convey and thereby its introduction was calculated to prejudice and inflame the minds of the jurors. This contention appears to be based on the fact that three photographs of the complainant were taken, each from a different angle, and that the one in question shows only one side of the complainant‘s face and head and could not truly deрict the whole situation or condition of the complainant. The existence of other рhotographs does not prevent State‘s Exhibit #1 from fairly and accurately representing what it рurports to depict. If a witness who saw with his naked eye the object of or scene in the phоtograph testifies that the photograph truly and accurately represents that objeсt or scene, that photograph is qualified for admission into evidence. Fields v. State, 160 Tex.Cr.R. 545, 272 S.W.2d 520; McFarlane v. State, 159 Tex.Cr.R. 658, 266 S.W.2d 133.
Appellant‘s contention is without merit. Ground of error #3 is overruled.
The judgment is affirmed.
MORRISON, Judge (concurring).
While I have dissented in several of the cases citеd by the majority on the question of the introduction of the picture of the injured party, I am satisfied that in this case an issue was made by appellant and his witnesses which authorized admission of the picture in evidence.