Smith v. State

675 S.W.2d 300, 1984 Tex. App. LEXIS 5915
Court of Appeals of Texas·Decided July 19, 1984·No. No. 01-84-0376-CR·Published·Cited by 4 cases

Opinion

OPINION

EVANS, Chief Justice.

The appellant was tried and convicted by a jury of the offense of kidnapping. The jury determined that he had two prior felony convictions, and the court imposed the mandatory sentence of life imprisonment.

On the night in question, the complainant had been at a local bar with a male companion. On their way home, the complainant’s car became stuck, and she and her companion started to walk to the apartment complex where they both lived. The man did not wish for his wife to know that he had been with the complainant, so he separated from the complainant several blocks from the apartment complex. The complainant then accepted a ride from two men in a car. Complainant testified that both men were strangers to her. She also testified that the men refused to drop her off at her home, and that they took her against her will, and under threat of serious bodily harm, to an isolated location, where they raped her. She said that she pretended to [302]*302enjoy the attack because she was afraid of “being found dead in the woods,” and that she finally succeeded in persuading the driver to drop off his passenger and to return her to her apartment complex.

Upon reaching the apartment complex, the complainant pointed out, as her own apartment, the home of the neighbor with whom she had spent the evening, and invited the driver to meet her inside. She was able to reach the neighbor’s apartment before the driver arrived at the door. She immediately started to cry and told the neighbor and his wife that she had been raped. The neighbor’s wife testified that a few minutes later the appellant came to the door. She recognized the appellant as a person she had known for a long time. She asked the complainant “Is this the guy that raped you?” to which the complainant replied “Yeah, get him away from me.” The witness’s husband then forced the appellant to leave the premises.

The appellant’s co-defendant waived his Fifth Amendment right and testified against appellant in exchange for a five year probated sentence for his part in the kidnapping. The co-defendant gave essentially the same account of the abduction. The appellant does not challenge the sufficiency of the evidence except with respect to the evidence identifying him as the driver of the kidnap vehicle. In his second ground of error, he asserts that the only evidence identifying him as the driver of the car came from the accomplice witness and that the other evidence connecting him to the offense is insufficient to corroborate that identification.

Tex.Crim.Proc.Code Ann. art. 38.14 provides that a defendant may not be convicted on accomplice testimony alone, and that there must be “other evidence tending to connect the defendant with the offense.”

At trial, the complainant could not identify appellant as the driver. However, she testified that a photograph of the appellant, taken on the night of the offense, looked like the driver of the car. She said that the driver had worn a black or brown leather jacket, a light colored leather hat, and a textured shirt, and she described him as having sideburns and coarse hair on his lips and chin. A photograph of the appellant taken on the night of the abduction shows a man fitting the description given by the complainant wearing a brown leather cap and jacket. Additionally, the complainant made a positive identification of appellant’s car as the vehicle in which she was abducted. She testified that during the time she was being sexually assaulted by the driver, the passenger told the driver “Hurry up, Charlie,” which is appellant’s name. This testimony by complainant corroborates the identification by the accomplice witness. The neighbor’s identification of the appellant as the man waiting outside the apartment and as the person that the complainant pointed out as her attacker is additional evidence connecting appellant to the offense. We overrule appellant’s second ground of error. The appellant’s remaining grounds of error pertain to alleged errors occurring during the course of trial.

In his third ground of error, the appellant contends that the trial court erred in refusing his motion for a mistrial after some prospective jurors apparently glimpsed him in handcuffs as he was entering the hallway. In support of this ground, the appellant cites Moore v. State, 535 S.W.2d 357 (Tex.Crim.App.1976). In that case, the defendant, while still handcuffed, was escorted into the courtroom in full view of the jury on four separate occasions, despite his attorney’s objections. The accidental exposure of appellant during the voir dire process falls far short of the deliberate and prejudicial exposure of the defendant in Moore. The facts in this case are much closer to the circumstances related in Coleman v. State, 642 S.W.2d 205 (Tex.App. — Houston [14th Dist.] 1982, pet. ref’d), where a juror accidentally saw a defendant exiting an elevator in handcuffs. There, the court held that such exposure did not have “such prejudicial effect as to have deprived appellant of a fair trial.”

In the instant case, the appellant did not show that any of the jurors finally selected to hear his case actually saw him in hand[303]*303cuffs, and there is nothing in the record to indicate that such exposure was deliberate or so prejudicial as to have deprived him of a fair trial. We overrule the third ground of error.

In his fourth ground of error, the appellant contends that the trial court improperly commented on his defense counsel’s strategy of approaching the bench to make all objections during the course of trial.

The record shows that toward the end of the State’s ease, appellant’s counsel made a request to approach the bench. The State’s attorney objected “to the continual parade to the bench,” and the court overruled the State’s objection. The appellant’s counsel then invited the prosecutor to approach the bench, so that appellant’s counsel could make his objection to the State’s question. The prosecutor replied, “I’m comfortable,” apparently declining to approach. The appellant’s counsel then objected to the State’s refusal, and the Court replied, “It isn’t really necessary that you come up here.” The appellant’s counsel explained that he considered his approach to the bench as necessary to avoid prejudice before the jury, and the trial court acquiesced.

In a later incident, the following exchange between appellant’s counsel and the State prosecutor occurred:

PROSECUTOR: Ray Charles is well known in the community, is he not?
DEFENSE: Your Honor, I object, may I approach the bench?
PROSECUTOR: Your Honor, I object to approaching the bench.
DEFENSE: I’m going to object once again. I had to object to this once before, the Prosecutor commenting on my approaching the bench to have the court reporter make my objections.
THE COURT: You may make your objection from your seat over there.
DEFENSE: Well, I object to the Court telling me that I don’t have a right to come up here and to make my objections in front of the courtroom.
THE COURT: You may object for the rest of the day, but you may also go back to your place and make your objection.
DEFENSE: May I have a ruling, Your Honor?

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Smith v. State, 675 S.W.2d 300, 1984 Tex. App. LEXIS 5915 (Tex. Ct. App. 1984).

675 S.W.2d 300 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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