Lunsford v. State

261 S.W.2d 591, 159 Tex. Crim. 82, 1953 Tex. Crim. App. LEXIS 1785

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 1953
• Docket: 26492
• Status: Published

Opinions

MORRISON, Judge.

The offense is aggravated assault; the punishment, six months. The prosecution was brought under Section 5 of Article 1147, Vernon’s Ann. P. C., the appellant being an adult male and the injured party a female. They were man and wife. It is undisputed that the participants had been drinking for many hours; that they had parked on a lonely road; that they had engaged in a fight; that the injured party had gone to sleep; and that some time later they were apprehended by police officers. The injured party was shown to have sustained black eyes, a cut lip, and multiple bruises.

Appellant defended on the ground that the officers had no warrant to search his automobile and, therefore, should not be permitted to testify as to what they observed therein or what appellant said at the time of the arrest. The officers testified on direct examination that they observed an automobile parked on “a road in the woods, more or less of a lovers lane”; that they “shined my light in the front seat of the vehicle and saw the defendant, and at that time what appeared to be a woman under him; she was laying with her head on the passenger side of the vehicle, with her feet to the driver’s side, and the defendant was in a half sitting, crouching position facing the driver’s side, with his body on the passenger side and his head was between her legs.”

It is unnecessary to pass upon the legality of the search predicated upon the foregoing testimony, because the appellant took the officer on voir dire examination and asked him this question:

“Q. When you saw what you mentioned in your testimony that the defendant had his head between the legs of this woman in the car there and then brought his head up, at that moment did you at that time think he was committing the offense of sodomy on this woman? A. Yes sir.”

If from what he saw it reasonably appeared to the officer that the felony offense of sodomy was then being committed in his presence, there can be no question as to his authority to search the automobile, arrest the appellant and testify as to what appellant said.

Appellant next contends that this cause shoúld bé reversed because of the proof of an extraneous offense of sodomy. We have quoted from the record in order to demonstrate that appellant himself injected the extraneous offense into the case and, therefore, cannot be heard to complain.

There was nothing in the direct testimony of the officer to show the commission of an extraneous offense. Not until the appellant cross-examined him was such issue brought into the case.

By one bill of exception the appellant complains of the redirect examination of the prosecutrix. On cross-examination by counsel for appellant, she was asked if appellant had ever during their married life committed an act of sodomy upon her, and she answered, “Never done anything like that actually to me, no.” On re-direct examination the state asked her, over appellant’s objection, if appellant had ever attempted such act, and she replied that he had. Since the appellant first interrogated the witness on the matter, we see no error in permitting the state to fully cross-examine her concerning the same.

Finding no reversible error, the judgment of the trial court is affirmed.