Spaulding v. State

656 S.W.2d 538, 1983 Tex. App. LEXIS 4657
CourtCourt of Appeals of Texas
DecidedJune 9, 1983
DocketNo. 13-81-400-CR
StatusPublished
Cited by5 cases

This text of 656 S.W.2d 538 (Spaulding v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spaulding v. State, 656 S.W.2d 538, 1983 Tex. App. LEXIS 4657 (Tex. Ct. App. 1983).

Opinion

OPINION

NYE, Chief Justice.

Appellant stands convicted of the offense of aggravated sexual abuse. The jury which found him guilty also found that he had previously been convicted of a felony and assessed his punishment at fifty years’ confinement and a fine of $10,000.00. Appellant brings seven grounds of error complaining of alleged errors in his trial and of the sufficiency of the evidence to support the aggravating element of the offense charged.

First we consider appellant’s challenge to the sufficiency of the evidence. The indictment in this cause charged the aggravating element of the crime in the following language:

“AND THE SAID WILLIAM ELLS-WORTH SPAULDING, III, did then and there intentionally and knowingly compel [the victim] to submit to said deviate sexual intercourse by threat of serious bodily injury to be imminently inflicted on [the victim] .... ” Tex.Penal Code Ann. § 21.05 (Vernon 1974).

The complaining witness testified that the appellant came up behind her and put a knife up against her throat. He then forced her to remove her clothes, at which point the victim stated that she was terrified. She said that after she had taken off her pants, he backed away from her and ordered her to slowly turn around. When she did so, he was pointing the knife at her. She testified that, at that time, she was afraid he was going to kill her and that she would never get to see her little boy or her husband again. The appellant taped her hands and face and committed the sexual assault on the victim.

As the Court of Criminal Appeals has said repeatedly, “a threat can be communicated by action or conduct as well as words.” Whitchurch v. State, 650 S.W.2d 422 (Tex.Cr.App.1983); Rogers v. State, 575 S.W.2d 555, 558 (Tex.Cr.App.1979). The showing that the appellant exhibited a knife and placed it at the throat of the victim was sufficient evidence of the threat [540]*540required under section 21.05(a)(2). Whit-church v. State, supra; Church v. State, 552 S.W.2d 138, 140 (Tex.Cr.App.1977). Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to sustain the appellant’s conviction of aggravated sexual abuse.

Appellant contends that the trial court erred in admitting into evidence State’s exhibits 1-5, consisting of photographs used in a photographic lineup in which the victim identified the appellant as her assailant. The photographs complained of were admitted at a pretrial hearing held to determine whether pretrial identification procedures were unduly suggestive. The State did not use the photographs before the jury. The photographs were clearly relevant and necessary for the trial court to determine if the lineup was so impermissi-bly suggestive as to taint any identification testimony expected at the trial. This was the very purpose of the hearing which was requested by the appellant. It appears that appellant received exactly the relief requested in his motion. He did not except in any way to the trial court’s ruling that the lineup was not unduly suggestive, nor did he object to the complaining witness’ in-court identification of the appellant. No error is presented.

Appellant argues that the trial court erred in denying his motion to set aside the indictment on the grounds of improper grand jury procedure. Appellant bases his argument on the fact that Mr. Frank Helms, the deputy sheriff and criminal investigator for Jackson County, attended the grand jury hearings on appellant’s case as a bailiff, testified to the grand jury as a witness, and was present when the defendant appeared before the grand jury. The record reflects that Helms was on official assignment as bailiff for the grand jury in compliance with Tex.Code Crim.Pro.Ann. art. 19.37 (Vernon 1977). He was under oath to keep secret the proceedings of the grand jury. Helms was not present when the grand jury was deliberating.

Appellant claims that the procedure was unfair because Helms was able to hear the appellant’s testimony and then shape his own testimony accordingly. However, the record does not reflect the order of testimony. Helms merely admitted that he was present when the appellant testified and that he had testified before the grand jury. The Court of Criminal Appeals said: “when the jurors are not deliberating or voting the presence of persons who have official business in the jury chamber, such as police officers or stenographers, is not discountenanced.” Baldwin v. State, 478 S.W.2d 476, 478 (Tex.Cr.App.1972); Minton v. State, 468 S.W.2d 426, 432 (Tex.Cr.App.1971). See also Ex parte Rogers, 640 S.W.2d 921, 924 (Tex.Cr.App.1982). Although perhaps the better procedure would have been to assign a different bailiff, in light of the fact that Helms was scheduled to testify, we hold that failure to do so does not warrant a dismissal of the indictment.

Next, appellant alleges that his constitutional right not to give testimony against himself was abridged because he was required to appear before the Jackson County grand jury during the course of its investigation of this case. We find this contention to be without merit. The issue is raised for the first time on appeal. Although appellant testified at the pretrial hearing on his motion to set aside the indictment on the grounds of improper grand jury procedure, he said nothing about having been required to testify. The record is completely devoid of any evidence that the appellant was compelled to testify before the grand jury. Appellant’s reliance upon McClellan v. State, 413 S.W.2d 391 (Tex.Cr.App.1967) is misplaced. In reversing that conviction and ordering a new trial, the Court of Criminal Appeals recognized that the trial court had expressly found that the grand jury had violated the accused’s constitutional right by requiring him to appear and testify. There is no such record in this case.

Appellant alleges that the trial court erred in allowing the prosecutor, over defense objections, to make improper refer-[541]*541enees to the community s expectations for a conviction and a harsh punishment in this case. In reviewing this point, we examine the arguments complained of in the context in which they were made. Cain v. State, 549 S.W.2d 707, 717 (Tex.Cr.App.1977). In the closing argument at the guilt or innocence stage of the trial, and in the course of a discussion aimed at convincing the jury of the complaining witness’ integrity and credibility, the State’s counsel made the following comments:

“You cannot prevent her from waking up in the middle of the night three years from now and recalling this from a nightmare. You cannot prevent that. The only thing you can do is tell [the victim] that it was worth it. It was worth you going to that doctor. It was worth you telling your husband.

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Related

Victor Hernandez v. State
Court of Appeals of Texas, 2015
Spaulding v. Collins
867 F. Supp. 499 (S.D. Texas, 1993)
Hernandez v. State
791 S.W.2d 301 (Court of Appeals of Texas, 1990)
Ex Parte Spaulding
687 S.W.2d 741 (Court of Criminal Appeals of Texas, 1985)

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Bluebook (online)
656 S.W.2d 538, 1983 Tex. App. LEXIS 4657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spaulding-v-state-texapp-1983.