Winkle v. State

506 S.W.2d 891, 1974 Tex. Crim. App. LEXIS 1564
CourtCourt of Criminal Appeals of Texas
DecidedMarch 13, 1974
Docket47393, 47394
StatusPublished
Cited by41 cases

This text of 506 S.W.2d 891 (Winkle 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.

Bluebook
Winkle v. State, 506 S.W.2d 891, 1974 Tex. Crim. App. LEXIS 1564 (Tex. 1974).

Opinion

OPINION

ONION, Presiding Judge.

These appeals are from convictions for rape, in a single trial, wherein the punishment was assessed by the jury at life in each case.

At the outset we shall consider appellant’s complaint that he was arraigned in both cases in the presence of the jury. This court has repeatedly stated that the practice of conducting arraignment in the presence of the jury should not be condoned, and trial courts should be careful to avoid such practice. Minafee v. State, 482 S.W.2d 273, 276 (Tex.Cr.App.1972); Stewart v. State, 473 S.W.2d 495, 496-497 (Tex.Cr.App.1971); Thompson v. State, 447 S.W.2d 920, 922 (Tex.Cr.App.1969). In the instant case, however, as in Stewart, there was no objection to the arraignments being conducted in the jury’s presence and we find no reversible error.

Next, appellant challenges the sufficiency of the evidence to sustain the convictions.

On the evening of March 18, 1972, the 18-year old prosecutrixes, A- and V-, were driving to a miniature golf course in Dallas after being denied admittance at Lou Ann’s because they were unescorted when a car driven by Jack Gamble and containing the appellant and Joe Gamble pulled alongside and motioned for them to stop. The girls complied with the request of the unknown trio and, after a short conversation, the girls were invited to a party and agreed to go. The appellant and Joe Gamble got into V-’s car and gave directions to Joe Gamble’s house, while Jack Gamble left in the other car to pick up his date.

The group drove to a house located in the Pleasant Grove area of Dallas County and upon entering, began to listen to music, strum the guitar and play with some puppies. Later, Jack Gamble arrived with his date, changed his shirt and announced he and his date were not staying. At this point A- and V-decided to leave, but discovered that V- — ’s car would not start. The appellant and Joe Gamble worked on the car, but were not successful and the girls were persuaded to come back into the house and let the motor “cool.” After some discussion about calling a mechanic, the appellant and Joe Gamble drew butcher *894 knives, pushed the girls into a bedroom and ordered them to undress. The appellant and Gamble then had numerous acts of sexual intercourse with each girl, performed rectal sodomy on the girls and forced them to perform acts of oral sodomy, and then forced the girls to commit oral sodomy upon each other. These acts took place over a three or four hour period.

After the girls had been allowed to dress, Jack Gamble returned from his date and V- related she told him what had transpired. Subsequently, one of the men repaired V ’s automobile and the girls were permitted to leave after being threatened they would be killed if they told what had happened and after they promised to remain silent.

About 5 a. m. the girls arrived at A-’s home in Mesquite and told A-’s mother they had been at the house of V-’s sister, but came home because the people at the sister’s house had been called out of town. Upon awakening at 8:30 a. m., the girls related to A- — ’s mother they had been raped. The police were called. They pointed out the house in question to the police and were taken to the hospital for an examination.

The appellant did not testify, but called Jack Gamble, who testified that he returned to the house after 3 a. m. and found the girls fully clothed and that, after a short discussion with V-, she went with him to the living room, where he pulled out a hideaway bed, laid on it with V-, kissing and was “starting to make out” when A-came in and said she and V- had to leave.

Dr. Robert Gardner, a defense witness, testified that he examined both girls and found no signs of trauma, bleeding, nor observed any anal irritation in either girl. He related he failed to find any evidence of sperm in their vaginas. The girls had testified that neither man had reached a climax during the numerous sex acts.

In rebuttal A-’s mother testified the doctor had told her he had found evidence of sexual intercourse.

It is appellant’s contention that since the prosecutrixes’ stories were severely impeached by the examining physician, and other facts, their testimony is not worthy of belief.

The prosecutrixes repeatedly testified that appellant had penetrated their private parts with his male organ. They were in the same room and corroborated each other’s testimony. Although the examining physician expressed an opinion inconsistent with that of forcible rape, the jury was at liberty to believe any part of the testimony and reject the remainder.

It is true that the girls did not make an immediate outcry upon return to A-’s home, but they explained they were scared because of the threats upon their lives and were not sure what to do, and delayed their outcry for several hours.

The jury observed the witnesses, passed on their credibility, and chose to believe the girls’ explanation, and this court should not disturb the verdict where the same is based on probative evidence. 48 Tex.Jur.2d, Rape, Sec. 77, p. 426; Blackmon v. State, 87 Tex.Cr.R. 173, 220 S.W. 93 (1920); Barry v. State, 165 Tex.Cr.R. 204, 305 S.W.2d 580 (1957).

Viewing the evidence in the light most favorable to the jury’s verdict, as we are required to do, we deem it sufficient to sustain the convictions.

Next, appellant contends the trial court erred in permitting two butcher knives to be introduced into evidence, as they were seized under a defective search warrant.

The record reflects that Dallas Police Officer Jack Cranford talked to the prose-cutrixes and learned that the butcher knives used had been placed in a dresser drawer in the bedroom where the offenses took place. Thereafter he filed a search warrant affidavit seeking a warrant to search for implements kept for the purpose *895 of aiding in the commission of an offense, to-wit: rape and described such implements as “knives.” The search warrant was issued and the affiant-officer and others went to the house in question and searched the dresser drawer and found the butcher knives which were introduced, over objection, into evidence.

Appellant contends that the search warrant is defective because it does not describe the implements to be searched for as “knives.” The warrant authorized the officers to search the place described “where implements, such as are above named, are kept for the purpose of aiding in the commission of the offense of Rape and if you find there any such implements, you will seize the same . . . .” Appellant argues that implements were not “above named” or described and the warrant did not comply with the provisions of Article 18.13(3), Vernon’s Ann.C.C.P., which provides, among other requisites of a search warrant,

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Bluebook (online)
506 S.W.2d 891, 1974 Tex. Crim. App. LEXIS 1564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winkle-v-state-texcrimapp-1974.