Marshburn v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

We are again urged to reverse this conviction on the basis of the holding of the Fifth Circuit Court of Appeals in Braswell v. Wainwright, 463 F.2d 1148.

*667In Braswell, supra, the Court concluded defendant could not be deprived of the testimony of a witness who had violated “the rule” when that testimony was essential to his defense. The Court held that since “Braswell was claiming self-defense and Rogers [the excluded witness] was his only corroborating witness” the court erred excluding his testimony because he violated “the rule”.

In the case at bar, appellant was positively identified by the two victims. During the trial appellant attacked the validity of his arrest and the search of his automobile.

We have reexamined the record and are unable to see how these two witnesses who were not permitted to testify could have supplied the “crucial” testimony in appellant’s behalf pointed out in Bras-well, supra. Appellant’s brief doesn’t point out the significance of their testimony. Cf. Nixon v. State, Tex.Cr.App., 309 S.W.2d 454.

Remaining convinced that the cause was properly disposed of originally, appellant’s motion for rehearing is overruled.