Bills v. State

327 S.W.2d 751, 168 Tex. Crim. 369, 1959 Tex. Crim. App. LEXIS 2570

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 1959
• Docket: 30761
• Status: Published

Opinions

DICE, Judge.

The conviction is for sodomy; the punishment, 15 years.

Appellant entered a plea of guilty before a jury and filed application for a suspended sentence.

At the trial the prosecuting witness named in the indictment, who was an eleven-year-old boy, testified that on the night in question he went with the appellant and two other boys to a drive-in theatre where they parked in a station wagon on the third row from the back; that he went to the concession stand with one of the boys and when they returned the appellant and the other boy were in the back of the station wagon; that, at appellant’s request, he then got in the back where appellant committed an act of sodomy upon him, after which he returned to the front seat and the boy who had accompanied him to the concession stand got in the back with appellant.

Appellant’s written confession was introduced in evidence in which he admitted taking the prosecuting witness and the other two boys to the drive-in theatre on the night in question and further admitted that he committed an act of sodomy upon the prosecuting witness and upon one of the other boys.

As a witness in his own behalf, appellant testified in support of his application for a suspended sentence that he had never been convicted of a felony and admitted that the statements contained in his written confession were true.

Appellant predicates his appeal upon the contention that the court committed reversible error in admitting evidence before the jury, over his objection, of other crimes and offenses which did not relate to the offense charged against him and that the prosecuting attorney committed reversible error in referring to such other crimes and offenses in his argument to the jury.

It is first insisted that the court erred in overruling appellant’s motion, made at the beginning of the trial, requesting the court to instruct state’s counsel not to elicit any testimony pertaining to any crimes or offenses other than those which related directly to the charge against appellant. In overruling the motion, the court did not err as a motion to suppress evidence is not a recognized procedure in this state. Dominguez v. State, 161 Texas Cr. Rep. 124, 275 S.W. 2d 677, and Williams v. State, 164 Texas Cr. Rep. 347, 298 S.W. 2d 590.

A careful examination of the record reflects that the only evidence admitted by the court of any extraneous crime or offense committed by appellant was the evidence of appellant’s acts and conduct on the night in question in getting in the back of the station wagon with the other two boys who were with the prosecuting witness and committing an act of sodomy upon one of them. Such acts and conducts were a part of the res gestae of the offense charged and the evidence thereof was admissible. 18 Texas Jur. par. 39, page 77; Bowles v. State, 156 Texas Cr. Rep. 548, 244 S.W. 2d 811; Gephart v. State, 157 Texas Cr. Rep. 414, 249 S.W. 2d 612, and Botello v. State, 161 Texas Cr. Rep. 207, 275 S.W. 2d 814.

The argument of state’s counsel, of which appellant complains, was clearly in reference to the appellant’s association with the three boys who were with him on the night in question and to the families of the prosecuting witness and the other boy upon whom he committed the acts of sodomy. The argument was warranted by the evidence and did not infer that appellant had committed other crimes or offenses upon boys other than those present on the occasion when the offense was committed upon the injured party.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.