Hawkins v. State

509 S.W.2d 607, 1974 Tex. Crim. App. LEXIS 1588

Opinions

OPINION

BROWN, Commissioner.

Appellant was convicted in a joint trial with three codefendants in our cause number 47,973 (trial court number C-72-602JL) of robbery, and in our cause number 47,974 (trial court number C-72-603-JL) of rape. The jury assessed punishment in each cause at confinement in the Texas Department of Corrections for one hundred (100) years.

There is no challenge to the sufficiency of the evidence.

The record reflects that at approximately 10:30 p. m. on the evening of December 26, 1971, the complaining witnesses, a young man and a young woman, were parked in an uninhabited area of Dallas County when their attention was directed to a 1955 yellow Chevrolet experiencing mechanical difficulty. The young man, on request from the occupants of the Chevrolet, repaired the auto and it left the scene. Shortly thereafter, the Chevrolet returned and the six occupants, the appellant being one, robbed the young man and raped the young woman.

In his first two grounds of error appellant contends the trial court erred in failing to suppress the complaining witnesses’ in-court identification of him because the pretrial identification procedures in which the complainants participated were impermissibly suggestive and gave rise to a substantial likelihood of misidenti-fication.

Prior to trial the court conducted a hearing in the jury’s absence to determine the admissibility of the identification testimony of the complainants as recommended in Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). At the hearing the complainants testified they recognized the appellant in court because they remembered him from the night of the offense. Each testified that each was in the presence of the appellant for a period of time from one hour to one hour and a half. During that time they had ample opportunity to observe the appellant in sufficient light.

The record reflects no lineup participation by appellant for viewing by complainants, nor does the record show participation by this appellant in an examining trial of a co-defendant at which these complainants testified. Following the night of the offense, there is no evidence in this record that the complainants ever confronted the appellant personally prior to the day of trial.

There is no evidence of any discrepancy between a description given by the complainants and appellant’s actual description, nor is there any evidence of an identification of another rather than this appellant, nor is there evidence of a failure of the complainants to identify this appellant on a prior occasion. We agree with the trial court in its ruling following the hearing:

“That any identification made of the defendant by D. T. or J. H. was not tainted by any lineup or showing of any pictures by any police officer or their agents. That said identification was made solely from seeing the defendant at the time of the said assault and from no other source, and the Court so holds.” See Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Locke v. State, Tex.Cr.App., 453 S.W.2d 484.

The appellant’s first two grounds of error are overruled.

Next the appellant contends the trial court erred in excluding evidence as to the prior unchaste character of the prosecu-trix. The appellant' did not testify. Two of the six indicted in the causes testified that neither of them heard the prosecutrix cry out or saw her offer any resistance. Each of these witnesses denied having sexual relations with the young woman; but testified the other five did have such relations.

We hold that such evidence does not raise the issue of consent. The evidence shows the rape was accomplished by six males overpowering a young woman. In light of all the circumstances the mere fact that the two co-indictees did not see resistance or hear any outcry is no evidence the prosecutrix consented to the act of intercourse by the appellant. Therefore, any evidence of the unchastity of the prosecutrix was inadmissible. Jackson v. State, 470 S.W.2d 201 (Tex.Cr.App.1971); Roper v. State, 375 S.W.2d 454 (Tex.Cr.App.1964).

The ground of error is overruled.

The fourth ground of error challenges the refusal of the court to grant appellant’s motion for severance. He contends his prior convictions would prejudice him in a trial with co-defendants who had no prior criminal record. However, at the hearing on the motion for severance no evidence of the prior convictions was offered.

This ground of error was answered by this Court in Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969):

“Even if it can be argued that appellant’s motion was timely presented, no evidence was offered in support thereof as expressly required by Article 36.09, supra, and for this reason alone no error is presented.”

The ground of error is overruled.

We have carefully considered all of appellant’s grounds of error and overrule each. The judgments of the trial court are affirmed.

Opinion approved by the Court.