journal of the texas criminal defense lawyers association

contains the necessary allegation of an act by the accused which comprisesmore than one statutorily defined neans of its performance, as here withthe allegation of abductton, But the indictment fails to specify which ofthe statutory definitions of the act is relied upon, the Sndictment issubjert to a Mot2011 to Quasli. Coleman, 643 S.W.2d 124; Gorman, 634 S.W.2d681.The state argued the omission was harmless in that through subsequent discoverythe state's theory upon the issue of abduction was made plain, butthe court stated that it has expressly rejected discovery as a cure forthis type of error in Brssfield, 600 S.W.2d 288, 298-299.JAMES TAYLOR, No. 65,286, 65,287, Murder, Attempted murder, Life in eachcase, Rev'd, Judge Clinton, En Banc, 6/22/83.IMPROPER CROSS EXAMINATION BY STATE OF DEFENDANT'S COINDICTEE (AND WIFE):In a very unusual situation the state's evidence showed that D and hisgirlfriend who later became his wife prior to tr'al picked up a number ofother individuals and that subsequently during a drug deal a shooting brokeout and one person was killed and another wounded. The court, in reviewingthe sufficiency of the evidence, recognized that the evidence as to D'Sguilt of murdering the deceased was tenuous. During the state's case inchief, the state had D's girlfriend, Marilyn, brought into court foridentification of eye witnesses, After the state rested, the defensecalled Marilyn and inquired as to whether she had consulted with herattorney to which she responded in the affirmative and whether she desiredto testify today, to which she responded in the negative. The witnesswas then passed. Marilyn was then cross examined by the state with respectto an alleged statement that she had made to an otficer until the prose-,. cutor had elicited before the jury the facts that the witness had said, D was in the front seat of the car with her, that he had a big revolverand had pointed it at the guy with preludin and took them out of his hand,that she and D ran after the car died and that D was going to rob a dopedealer, etc. After each question by the prosecutor, the witness refusedto answer on the grounds that the answer would incriminate her. After thethird such question and answer defense counsel objected "to this line ofquestioning", which was overruled.The court held that this objection was adequate to preserve the error underthe circumstances presented. Zillender, 557 S.W.2d 515. The court,thenheld that the state had every right to conduct proper cross examination ofMarilyn and even elicit her implication of the privilege (hushandlwife);the state, however, was not entitled to have the witness invoke the FifthAmendment repeatedly and knowing she would do so seize upon her refusal.to testify as an opportunity to place before the jury parts of her hearsaystatement which out of confext incriminated her husband, the accused. Forthis manifestly prejudicial conduct on the part of the prosecutor whichadulterated the very integrity of the fact finding process, both cases werereversed and remanded. Washburn, 299 S.W.2d 706; Lackey, 190 S.W.2d 364.SD-36 VOICE for the DefenseJAugust 1983