McClure v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant’s counsel takes this Court to task because of the dearth of authority cited in our original opinion and because we failed to discuss the cases cited by him in his original brief. It is true that Davis v. State, 118 Tex.Cr.R. 410, 40 S.W.2d 809, and Simmons v. State, 118 Tex.Cr.R. 519, 40 S.W.2d 804, are authority for the rule that reversible error is reflected when a witness is not permitted to explain a fact which has been brought out to discredit him. In our original opinion we set out in haec verba the testimony of Rebecca McClure upon which appellant relies, and we were then and are now unable to find anything discrediting to the witness nor do we find that the defendant ever perfected his bill of exception by showing what further testimony he sought to elicit from such witness. Gaskins v. State, 164 Tex, Cr.R. 431, 299 S.W.2d 710, 711; Floyd v. State, 164 Tex.Cr.R. SO, 296 S.W.2d 523; Peterson v. State, 157 Tex.Cr.R. 255, 247 S. *817W.2d 110; and Davis v. State, 73 Tex.Cr.R. 49, 163 S.W. 442.

He further complains of the testimony of the County and District Attorney also set forth in our prior opinion and contends that the same was hearsay. We were careful to point out that all three parties were present and the court carefully in-fracted the witness to confine her testimony as to what transpired in appellant’s presence. There was no showing that an accusation was made against appellant and that he remained silent, as was the situation in a number of cases cited by appellant, such as in Brown v. State, 172 Tex.Cr.R. 229, 355 S.W.2d 718; Covin v. State, 130 Tex.Cr.R. 285, 93 S.W.2d 428; and Sessums v. State, 129 Tex.Cr.R. 128, 83 S.W.2d 965.

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