Alvear v. State

Court of Criminal Appeals of Texas

Alvear v. State

341 S.W.2d 426, 170 Tex. Crim. 378, 1960 Tex. Crim. App. LEXIS 2222

CourtCourt of Criminal Appeals of Texas

DecidedNovember 23, 1960

Docket32517

StatusPublished

Cited by13 cases

This text of 341 S.W.2d 426 (Alvear v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alvear v. State, 341 S.W.2d 426, 170 Tex. Crim. 378, 1960 Tex. Crim. App. LEXIS 2222 (Tex. 1960).

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WOODLEY, Judge.

The offense is burglary of a private residence at night with intent to commit rape; the punishment, 5 years.

The state’s evidence, including the testimony of the woman named in the indictment, the arresting officers and the confession of the appellant, shows that on the night alleged appellant and a companion entered the private residence occupied by the woman named in the indictment, and both succeeded in having intercourse with the woman over her protest and despite her outcries and resistance.

The evidence further shows that entry into the house was effected by cutting a screen, and that neither appellant nor his companion knew who the woman was they found alone in the house and ravished.

No brief has been filed in appellant’s behalf.

There are two formal bills of exception. The first complains that upon request of the jury the testimony of the two arresting officers were read to the jury.

The bill shows that counsel took several positions in regard to this testimony being reproduced, at one time requesting that it be read. We see no error in the matter. If so, there is no showing of injury or prejudice.

The second bill complains of the opening argument of counsel for the state wherein counsel stated: “ * * * this lady was in her monthly period, she stated so, she said that the man did not pull off his pants, that this man was found walking away from the house with blood on his pants, it is uncontradicted, ladies and gentlemen * * * .”

It is contended that such remarks constitute a reference to the defendant’s failure to testify. ■

We do not understand that only by his own testimony could the statement that appellant was found walking away from the [380]*380scene of the burglary and rape with blood on his pants have been contradicted. All of the witnesses so testified, appellant so stated in his confession, and the pants were introduced in evidence.

The language used might be construed as an implied or indirect allusion to the failure of the accused to testify, but to come within the prohibition of the statute, the implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

The judgment is affirmed.

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WOODLEY, Judge.

The offense is burglary of a private residence at night with intent to commit rape; the punishment, 5 years.

The state’s evidence, including the testimony of the woman named in the indictment, the arresting officers and the confession of the appellant, shows that on the night alleged appellant and a companion entered the private residence occupied by the woman named in the indictment, and both succeeded in having intercourse with the woman over her protest and despite her outcries and resistance.

The evidence further shows that entry into the house was effected by cutting a screen, and that neither appellant nor his companion knew who the woman was they found alone in the house and ravished.

No brief has been filed in appellant’s behalf.

There are two formal bills of exception. The first complains that upon request of the jury the testimony of the two arresting officers were read to the jury.

The bill shows that counsel took several positions in regard to this testimony being reproduced, at one time requesting that it be read. We see no error in the matter. If so, there is no showing of injury or prejudice.

The second bill complains of the opening argument of counsel for the state wherein counsel stated: “ * * * this lady was in her monthly period, she stated so, she said that the man did not pull off his pants, that this man was found walking away from the house with blood on his pants, it is uncontradicted, ladies and gentlemen * * * .”

It is contended that such remarks constitute a reference to the defendant’s failure to testify. ■

We do not understand that only by his own testimony could the statement that appellant was found walking away from the [380]*380scene of the burglary and rape with blood on his pants have been contradicted. All of the witnesses so testified, appellant so stated in his confession, and the pants were introduced in evidence.

The language used might be construed as an implied or indirect allusion to the failure of the accused to testify, but to come within the prohibition of the statute, the implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

The judgment is affirmed.

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341 S.W.2d 426, 170 Tex. Crim. 378, 1960 Tex. Crim. App. LEXIS 2222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvear-v-state-texcrimapp-1960.

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