Richardson v. State

Court of Criminal Appeals of Texas

Richardson v. State

458 S.W.2d 665, 1970 Tex. Crim. App. LEXIS 1295

CourtCourt of Criminal Appeals of Texas

DecidedMay 20, 1970

Docket42898

StatusPublished

Cited by48 cases

This text of 458 S.W.2d 665 (Richardson 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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Richardson v. State, 458 S.W.2d 665, 1970 Tex. Crim. App. LEXIS 1295 (Tex. 1970).

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Opinion

*666 OPINION

MORRISON, Judge.

The offense is rape; the punishment, 25 years.

Appellant’s first ground of error relates to the motion to suppress the in court identification of the prosecutrix because of a prior lineup identification (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149).

Appellant did not testify at the hearing on guilt, but did testify before the jury at the hearing on punishment. He admitted that the jury was correct in finding him guilty, and asked them to grant him probation.

We recently expressed our views on a kindred question in Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732. Here, however, the appellant voluntarily went before the jury, in answer to his own counsel’s questioning admitted that he had made a mistake, and asked the jury for mercy. No Fifth Amendment right is violated, and by employing such trial strategy, we can only logically say that on appeal such an appellant cannot question the sufficiency of the evidence or question the in-court identification of the prosecu-trix.

There remains only appellant’s complaint that a witness testified that prosecutrix came to his house immediately after she was released by appellant, and in answer to a question reported that she had been raped. The state urged that the error if it be error is not before the court because no objection was made at that point in the testimony and we agree, Scanlin v. State, 165 Tex.Cr.R. 183, 305 S.W.2d 357. Her outcry was clearly an exception to the hearsay rule, and was admissible, Hart v. State, 139 Tex.Cr.R. 101, 138 S.W.2d 818.

Finding no reversible error, the judgment is affirmed.

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*666 OPINION

MORRISON, Judge.

The offense is rape; the punishment, 25 years.

Appellant’s first ground of error relates to the motion to suppress the in court identification of the prosecutrix because of a prior lineup identification (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149).

Appellant did not testify at the hearing on guilt, but did testify before the jury at the hearing on punishment. He admitted that the jury was correct in finding him guilty, and asked them to grant him probation.

We recently expressed our views on a kindred question in Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732. Here, however, the appellant voluntarily went before the jury, in answer to his own counsel’s questioning admitted that he had made a mistake, and asked the jury for mercy. No Fifth Amendment right is violated, and by employing such trial strategy, we can only logically say that on appeal such an appellant cannot question the sufficiency of the evidence or question the in-court identification of the prosecu-trix.

There remains only appellant’s complaint that a witness testified that prosecutrix came to his house immediately after she was released by appellant, and in answer to a question reported that she had been raped. The state urged that the error if it be error is not before the court because no objection was made at that point in the testimony and we agree, Scanlin v. State, 165 Tex.Cr.R. 183, 305 S.W.2d 357. Her outcry was clearly an exception to the hearsay rule, and was admissible, Hart v. State, 139 Tex.Cr.R. 101, 138 S.W.2d 818.

Finding no reversible error, the judgment is affirmed.

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458 S.W.2d 665, 1970 Tex. Crim. App. LEXIS 1295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-state-texcrimapp-1970.

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