Brooks v. State

342 S.W.2d 439, 170 Tex. Crim. 555, 1960 Tex. Crim. App. LEXIS 2272

• Court: Court of Criminal Appeals of Texas
• Decided: November 30, 1960
• Docket: 32494
• Status: Published

Opinions

DICE, Judge

The offense is rape; the punishment, 50 years.

The prosecutrix lived with her husband on a farm located about 11 miles from Ben Wheeler in Van Zandt County. She testified that on the afternoon in question, while her husband was away, a man whom she positively identified as the appellant came to where she was alone hoeing com in a field and asked her for the time of day; that appellant put a gun to her head, told her to start walking and pointed toward some woods; that she began walking and appellant put the gun to her back; that after she had walked some 50 yards appellant told her to stop, undress and lie down; that after she had complied with his demand appellant then got on top of her and had a penetration and sexual intercourse with her while holding the gun close to her head. She testified that appellant then left, that she ran to her home, where she locked the door, pulled the window shades, and when her husband returned an hour and a half later told him what had happened. She further testified that while appellant was assaulting her she was afraid he would kill her and that appellant’s act of intercourse was done against her will and without her consent.

The prosecutrix’s husband, upon being called as a witness by the state, corroborated her testimony relative to her outcry made to him when he arrived home on the evening in question.

Appellant did not testify or offer any evidence in his behalf.

Appellant’s sole contention on appeal is that the court erred in overruling his motion to quash the indictment on the ground of racial discrimination because of the intentional inclusion of members of the Negro race, of which appellant was a member, upon the grand jury which returned the indictment against him.

Under the record as presented, appellant’s contention is not properly before us for review.

There are no formal bills of exception.

Appellant’s motion to quash the indictment appears in the transcript; however, the transcript does not contain an order of the court thereon showing appellant’s exception to the court’s ruling. Such an order and exception are required under Article 760e, V.A.C.C.P., to constitute an informal bill of exception to the court’s action in overruling the motion. Crawford v. State, 165 Tex. Cr. R. 147, 305 S.W. 2d 362, and Johnson v. State, 165 Tex. Cr. R. 563, 310 S.W. 2d 70.

The record does not contain a separate statement of facts of the evidence adduced upon the hearing of appellant’s motion to quash the indictment. Section 6 of Article 759a, V.A.C.C.P., requires that a statement of facts relating to any motion heard in the case shall be filed separate from the facts adduced upon the guilt or innocence of the defendant. The evidence adduced upon the hearing of the motion, not being presented by a separate statement of facts, cannot be considered. Pierce v. State, 159 Tex. Cr. R. 504, 265 S.W. 2d 601, and Crawford v. State, supra.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.