Keith Ray Jones v. State

Jones, KR v State

AFFIRMED

FEBRUARY 22, 1990

NO. 10-89-045-CR

Trial Court

# 8446

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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KEITH RAY JONES,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From 12th Judicial District Court

Madison County, Texas

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O P I N I O N

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A jury found Appellant guilty of the aggravated sexual assault of his nine-year-old stepdaughter and assessed his punishment at thirty years in prison. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon 1989). During the trial, Appellant took the stand to testify in his defense. He denied ever sexually assaulting the child. The State stipulated that on the date charged in the indictment, Appellant was in jail in Walker County. The only point on appeal is that the court erred when it overruled objections to the prosecutor's cross-examination of Appellant. The judgment will be affirmed.

During cross-examination, the prosecutor asked Appellant the following question: "I want you to look these people in the eye and I want you to tell them what motive a nine year old child has for getting up on this stand and telling them about intimate sexual contact. I would like to hear that." Appellant objected to the question on the ground that it called for "a conclusion based on what a nine year old girl thinks." The objection was overruled. The prosecutor also asked Appellant, "Now, you heard Mrs. Knight and the social workers testify that [the child] would break down crying when they questioned her about this. Why would she be so emotional about that?" Appellant's objection to this question was also overruled. In his only point he argues that the court erred when it overruled his objections.

A defendant who chooses to testify may be contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, cross-examined as to new matters, and treated in every respect as other witnesses. Cisneros v.State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985). Cross-examination of the defendant extends to all reasonable facts and circumstances establishing the nature of and facts surrounding the offense charged. Martin v, State, 707 S.W.2d 243, 245 (Tex. App.--Beaumont 1986, pet. ref'd). The prosecutor's repeated questioning of the defendant on cross-examination is within the discretion of the court. Prejean v. State, 480 S.W.2d 652, 655 (Tex. Crim. App. 1972). Furthermore, when there is an irreconcilable conflict between testimony of the prosecution's witnesses and the defendant's testimony, considerable latitude should be given in cross-examination of the defendant. Daniels v. State, 167 Tex. Crim. 219, 319 S.W.2d 321, 324 (1958).

The prosecutor's questions to Appellant were proper cross-examination because they related to conflicts between his testimony and that of the child. However, assuming that there was error, this court finds beyond a reasonable doubt that it was harmless because it did not contribute to Appellant's conviction or punishment. See TEX. R. APP. P. 81(b)(2). Point one is overruled and the judgment is affirmed.

 

                       

BOB L. THOMAS

DO NOT PUBLISHChief Justice

seeks to withdraw.

  We recently held that the trial court should determine whether to grant a motion to withdraw filed by appointed counsel in a parental-rights termination case after an appeal has been perfected.  See In re M.V.G., --- S.W.3d ---, ---, 2009 WL 1025381 (Tex. App.—Waco April 10, 2009, order).  Accordingly, counsel’s motion to withdraw is denied.  We abate this appeal for the trial court to determine (1) whether counsel should be permitted to withdraw; (2) whether new counsel should be appointed to prosecute this appeal; and (3) whether Appellant still desires to proceed with the appeal.  Any hearing shall be conducted within fourteen (14) days after the date of this Order.  Any orders signed by the trial court shall be included in the clerk’s record, which has not yet been filed.  However, the trial court is directed to provide a certified copy of any orders pertaining to the withdrawal of counsel or the appointment of new counsel within twenty-one (21) days after the date of this Order.

PER CURIAM

 

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray dissents for the reasons expressed in his dissenting note to the case relied upon by the Court, In re M.V.G.  See In re M.V.G., --- S.W.3d ---, ---, 2009 WL 1025381 (Tex. App.—Waco April 10, 2009, order) (Gray, C.J., dissenting)). 

Motion to withdraw denied; appeal abated

Order issued and filed May 27, 2009

Do not publish