Brookens v. State

438 S.W.2d 577 (1969)

Nathaniel BROOKENS, Appellant, v. The STATE of Texas, Appellee.

No. 41924.

Court of Criminal Appeals of Texas.

March 5, 1969.

Rehearing Denied April 9, 1969.

Vincent W. Perini, Dallas, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

DOUGLAS, Judge.

The offense is rape; the punishment, sixty years.

The trial was before a jury on a plea of guilty. The prosecutrix testified that appellant cut the screen, knocked the lock off the door, and entered her house. He held a knife to her chest and threatened to kill her. When the telephone started ringing, he jerked it loose from the wall. In the presence of her five children, he pushed the prosecutrix on the bed, ripped off her clothes, and started having intercourse with her. One of the girls screamed and ran out the front door, and appellant ran out the back door.

Appellant testified that he was drunk; that he had the knife and committed the rape.

It is contended that since a plea of guilty had been entered, the trial court erred in permitting the eight-year-old daughter of the prosecutrix to testify, because it would be highly prejudicial. The state's right to introduce evidence is not restricted by entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved. Whan v. State, Tex. Cr.App., 438 S.W.2d 918 (Delivered February 26, 1969); 56 Tex.Jur.2d, Trial, Sec. 130; Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869. The first ground of error is overruled.

Complaint is made because prosecutrix testified she did not try to fight appellant, because "he had a knife and I was afraid he had a pistol because his wife told me." An objection was sustained, and the jury was instructed not to consider the statement. A motion for mistrial was overruled. Since the court instructed the jury not to consider the statement, no reversible error is shown.

The judgment is affirmed.