*1 SWINDELL, Appellant, Earl Texas, Appellee.
The STATE of
No. 45637. Appeals
Court of Criminal of Texas. 31,
Jan. 1973.
Rehearing 14, Denied March 1973. Worth, Stephani, Fort Jr., C. Wil-
Otto Magnussen, (On Ap- liam R. Fort Worth peal only), Crouch, Atty., Roger Doug Dist. Worth, Atty., Fort Crampton, Asst. Dist. Vollers, Atty., and Rob- D. Jim Austin, Huttash, Atty., ert A. Asst. State’s for the State.
401 State, 188 415 S.W.2d Vasquez v. See OPINION State, 482 v. Thrash (Tex.Cr.App.1967); ONION, Presiding Judge. Odumes 213 (Tex.Cr.App.1972); S.W.2d (Tex.Cr.App. State, 218 445 S.W.2d v. rape appeal from a This is taken convic- 1969). punishment at tion where the was assessed Thereafter, following the sent years. jury the 25 by signed the foreman: court to the note sufficiency The of evidence is not the following testimony just -’s “Mrs. say the challenged. it Suffice to lake and car at the from the their exit appellant reflects the drove evidence threats to determine before intercourse prosecutrix the lo- in to a deserted car bodily harm. there, gun or by with Arlington cation near Lake threats, raped prosecutrix force and the time “Also, testimony in same Swindell’s finally her able without was consent. She period.” escape by moving to car. jumping the from reporter read back Thereafter, the behalf, Testifying appellant in his own A small testimony. portions the certain of having admitted sexual intercourse with testimony thus portion of the prosecutrix, the but it was believed and acts which made did to threats relate done with her consent. However, rape. alleged after the occurred at time. offered no there was error, In his ground first of guilt stage the court contends erred at the State, 646 425 Maldonado v. S.W.2d of allowing reporter the trial in the court in held that this court (Tex.Cr.App.1968), to jury testimony read back to in ex- the the defendant objection, of the absence requested. cess of what jury the complain the in to having in all of one witness’s court’s action during record reflects that de as the testimony jury read to the as well liberations the jury requested the all of of another witness. direct examination testimony given by by prosecutrix the State, 845 also Martin v. 459 S.W.2d See properly refused (Tex.Cr. App.1970). speci jury same unless the any, fied testimony, what if State, upon Pugh relies v. dispute. in were (Tex.Cr.App.1964), 376 S.W.2d 760 objected there the to the action defendant 36.28, Ann.C.C.P., Article pro- Vernon’s is, thus, It be court. distin vides, as follows: also guished as it was in Maldonado. See (Tex.Cr. Duncan 459 822 S.W.2d “In the trial of a criminal in a case App.1970). record, court of disagree if the as jury they statement witness Further, in manner in may, upon applying to the developed, it testimony which the reporter’s read to them from the court re for the court have been difficult would part testimony notes that of such witness separate as to porter it certain particular point or the dispute, in and no agree that not inclined to periods. areWe other; reporter, but if there be no such read testimony was amount of an excessive or if his notes cannot be read to the Duncan v. reporter. See back jury, may the court cause such witness (Tex.Cr.App.1970). 454 736 again brought upon to be the stand and judge repeat shall direct him to Next, appellant contends dispute, as to the in weight of evi commenting in other, erred nearly as as he can in the lan- out of complaint grows This dence. guage used on the trial.” having fact in that the addition to OPINION ON MO- APPELLANT’S back, gave read also them TION FOR REHEARING response written request note in reproduced testimony which read: JACKSON, Commissioner. OF THE “MEMBERS *3 JURY: Appellant now calls the Court’s attention I thought place there was another facts, to an addition to the statement of gun where a but I can was mentioned which addition is certified the trial
not find it.” court, disclosing that after defense counsel placed had four witnesses on the stand In the there were good reputation to his general attest aas appellant’s two references to statements peaceable citizen, law-abiding and that kill he had that he would gun then asked how attorney defense prosecutrix. many character he had in the witnesses hall, and he said he eleven. In other not told defense he counsel at that reproduced we find three other references many would not put him to on that gun. ato witnesses. Counsel for State at that time had a the stand and de- witness on While the court should not sent the have not fense counsel told the “I am statement, note or made the find no we any going questions, to ask him then T’ve objection agree, and we cannot un- thereto got some others.” circumstances, error der the that reversible is shown. Cf. Mathis v. further certified defense 396 (Tex.Cr.App.1971); Odumes v. any put not counsel was never told on supra. more told he could not witnesses put all eleven additional character wit- ap- showing There is no made that nesses. present pellant not and his counsel were given the note jury. when The defense thereafter did not call announced, additional witness but then Lastly, complains the rest, “We Your Honor.” limiting erred in number of stage character penalty at the witnesses ruling find
the trial. We to this addition to the wife, and no tender of addi there wit were four character witnesses, appel tional hence Ap nesses character who testified for the defense. pellant complain. lant is in does not in the out where limiting record the a ruling court made We reviewed the record in the number of character we witnesses and appellant’s motion, find origi- ruling. have been unable to find such case, opinion disposed nal correctly simply support ap The record not does rehearing. overrule the motion for pellant’s contention. Opinion approved by Court. judgment is affirmed.