Allison v. State

MORRISON, Judge.

The offense is rape; the punishment, death.

This is the second trial for the instant offense. The reversal of the prior case is reported in 157 Tex. Cr. Rep. 200, 248 S. W. 2d 147.

The prosecutrix testified that early one morning, just after her husband had left for work, the appellant broke into her apartment and, by means of threats to kill her and her children, forced her to give him her purse and to submit to a sexual act with him. She and her neighbors testified that immediately upon his departure prosecutrix reported the attack to the police and gave them a description of the appellant.

By means of radio, the police were able to apprehend the appellant within a few moments and within a few blocks of prosecutrix’s home.

In his pocket was found prosecutrix’s purse, bearing her name and address.

Appellant did not testify, and the only defensive testimony came from police officers, who stated that no stains were found on appellant’s underwear.

The sole question presented for review grows out of the reproduction of testimony given at a former trial. Only because of the extreme penalty in the case do we set forth appellant’s contention as follows: At the former trial, Ted Walsh, an investigator of the district attorney’s office, testified that he went to the jail and took from the appellant his clothes, which were introduced in evidence.

At the former trial, appellant, testifying in his own behalf, admitted that the clothes then in evidence were the same ones taken from him by Walsh and the same ones worn by him at the time of his arrest.

In the instant trial, the clothes were admitted in evidence by means of the testimony of the court reporter, who had retained possession of them following the first trial.

Neither Walsh nor the appellant testified at the instant trial. No explanation was made for Walsh’s failure to appear.

After the court reporter testified that he correctly transcribed the testimony given at the former trial, a portion of appellant’s testimony as shown in such, transcript was introduced, including the following:

“Question: No question about it but what those were the same Clothes taken off you by Mr. Ted Walsh at the County Jail. They are the same clothes. Answer: Yes, sir.”

We quote from appellant’s brief:

“The appellant recognizes the general rule that where an accused takes the stand in his own behalf he is to be treated as any other witness and that his testimony can be used against him upon a subsequent trial, but at the same time insists that to justify proof of the former testimony of a witness, whether it be the accused or another, a proper predicate must be laid for the introduction of such former testimony and specifically contends that in this case the reproduction of his testimony on the former trial amounted to a reproduction of the testimony of Walsh, because the testimony of the appellant and of Walsh were integral parts of a single story and so integrated that one could not be reproduced without reproducing the other.”

In other words, he says that the above quoted question and answer amounted to a reproduction of Walsh’s testimony.

We commend counsel for his able representation of the accused, both in the trial court and before this court, but we cannot subscribe to such an abstraction.

The trial court did not err in permitting the state to reproduce the testimony given by appellant at the former trial. Branch’s Ann. P. C., page 51, Section 80.

The evidence abundantly established the guilt of the accused, and we find no error in the proceedings below.

The judgment is affirmed.