Salcido v. State

319 S.W.2d 329, 167 Tex. Crim. 173, 1959 Tex. Crim. App. LEXIS 1807

• Court: Court of Criminal Appeals of Texas
• Decided: January 7, 1959
• Docket: 29900
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is statutory rape; the punishment, thirty years.

The evidence of the state shows that the prosecutrix, age fifteen, while walking home from work alone at night in the city of El Paso, was forced into an automobile occupied by the appellant and two other persons, who then drove to the sand hills outside the city where the appellant had carnal intercourse with the prosecutrix by force and without her consent.

Appellant, testifying in his own behalf, admitted that he had carnal intercourse with the prosecutrix, but stated that it was with her consent. He also offered testimony of voluntary previous acts of carnal intercourse by the prosecutrix with another person.

The jury chose to accept the prosecutrix’ version of the transaction, and we find the evidence sufficient to support its verdict.

Appellant contends that the trial judge erred in refusing to grant his second amended motion for a new trial because the jury received new evidence while they were deliberating which was prejudicial to him.

The motion and affidavits in support thereof allege that during its deliberations it received new evidence in the form of statements of members of the panel to the effect that an accused “would be subject to pardon, parole, and time off for good behavior” and “would serve approximately one-third of the time to which he was sentenced by the jury’s verdict”; that the California Prison System was discussed and the fact that prisoners in that state “behaved themselves in prison” got two-thirds of their time off; and that following this some of the jurors raised their votes to thirty years because they figured such a term could be served in ten years.

The holdings of this court in Harvey v. State, 150 Texas Cr. Rep. 332, 201 S.W. 2d 42, and Slaughter v. State, 154 Texas Cr. Rep. 460, 231 S.W. 2d 657, would indicate that proof at the hearing on motion for new trial should be limited to those matters set out in the pleadings. Be this as it may, we have carefully examined the statement of facts on motion for new trial and find that the appellant was able to establish that which was alleged in the motion and affidavits, and nothing more. Such statement of facts consumes 39 pages, and we do find certain isolated questions and answers which would, taken alone, seem to indicate that the jurors thought that all inmates were able to serve any particular sentence in one-third of the total number of years assessed; but an examination of the entire testimony leaves us convinced that these discussions were predicated upon the contingency that the inmate would secure time off for good behavior. This being so, we return to the allegations in the motion to determine if reversible error is reflected thereby.

In Roberson v. State, 160 Texas Cr. Rep. 381, 271 S.W. 2d 663, the showing was made that during its deliberations the jury discussed the fact that a convict would be eligible for parole after having served one-third of his term. In that case, we gave application of Article 775a, V.A.C.C.P., to the term of years actually assessed and said, “Our primary concern is to determine whether or not the information which was received by the jury was untrue or was harmful to appellant.”

In the later case of Napier v. State, 166 Texas Cr. Rep. 361, 314 S.W. 2d 102, in which we found practically the same type of discussion as in Roberson, we called attention to the adoption of Section 15 of Article 781d, V.A.C.C.P., which authorizes the release on parole of one “who has served one third (1/3) of the minimum sentence imposed.” There we said, “It will be seen from the above that the information which the foreman gave his fellow jurors was not ‘untrue’ and therefore was not hurtful to the appellant.” See also Johnson v. State, 166 Texas Cr. Rep. 237, 305 S.W. 2d 606. In fact, Judge Hawkins, speaking for this court in Walker v. State, 150 Texas Cr. Rep. 421, 201 S.W. 2d 823, said that it is a matter of common knowledge that prisoners are credited with extra time for good behavior; and in Plasentilla v. State, 152 Texas Cr. Rep. 618, 216 S.W. 2d 187, speaking through Judge Davidson, it was held that a reversal was not called for where one juror told his fellows “that if the defendant got 25 years he would serve only 4 or 5 years before being pardoned and if he got 50 years he would probably serve 15 or 20 years before being pardoned.”

In view of the above, we have concluded that jury misconduct has not been shown in the case at bar.

By formal bill of exception, appellant complains of the court’s refusal to give his special requested charge submitting his defense that the prosecutrix consented to the act and was of previous unchaste character. He further asserts in the bill that the trial judge erred in failing to respond to his exception that the charge did not affirmatively present his defense but presented it in a negative manner, and he also insists that the defensive charge as given should have been separately submitted to the jury.

There appears no substantial difference between the special requested charge and the court’s charge submitting the only defense urged by the appellant. Each sufficiently and affirmatively presents the defense authorized by Article 1183, V.A.P.C.

The refusal of the requested charge was not error because it was in substance included in the court’s main charge. 24-A, Texas. Juris., sec. 45, p. 600; Mata v. State, 163 Texas Crim. Rep. 584, 294 S.W. 2d 820.

Appellant’s defense was submitted in the same paragraph in the main charge following the state’s application of the law to the facts. In submitting his defense, the jury was instructed to acquit the appellant, even though they found beyond a reasonable doubt that he had carnal intercourse with the prosecutrix, if they believed such carnal intercourse was with her consent, and further believed that prior to such time she had had carnal intercourse, or if they had a reasonable doubt thereof to acquit the appellant.

The court next charged on the burden of proof, the presumption of innocence, and the application of the law of reasonable doubt. The instructions submitting appellant’s defense should have been separately submitted in the main charge. However, the court’s charge, considered as a whole, shows that the appellant’s defense was adequately presented to the jury, hence no reversible error is shown.

No reversible error appearing, the judgment of the trial court is affirmed.