# Bryant v. State

> Court of Criminal Appeals of Texas · October 13, 1965 · 397 S.W.2d 445

URL: https://www.frixlaw.com/law-library/cases/9857381

## Case

- **Full name:** Dudley BRYANT, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 13, 1965
- **Citations:** 397 S.W.2d 445; 1965 Tex. Crim. App. LEXIS 874
- **Precedential status:** Published
- **Opinion:** On rehearing by Dice
- **Judges:** McDonald, Morrison, Dice
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857381

## Opinion text

ON APPELLANT’S MOTION FOR REHEARING
DICE, Commissioner.
Appellant strenuously insists that the majority opinion affirming his conviction was erroneous in upholding the action of the trial court in refusing his request that the recording of the witness’s testimony before the grand jury be produced for his inspection and also for incorporation into the record as a part of his bill of exception on appeal.
The record has again been reviewed in the light of such contention, and the majority remain convinced that the rule stated in Gaskin v. State, supra, Sewell v. State, supra, and the other cases cited in the original opinion was met when appellant was furnished with the written transcript of that portion of the witness’s testimony before the grand jury from which he had refreshed his memory.
In this connection it should be noted that, under the decisions of this court, the state is not required to produce for inspection of the accused the testimony of witnesses before the grand jury. Hanes v. State, 170 Tex.Cr.R. 394 , 341 S.W.2d 428 ; Nisbet v. State, 170 Tex.Cr.R. 1 , 336 S.W.2d 142 , certiorari denied, 363 U.S. 829 80 S.Ct. 1601 , 4 L.Ed.2d 1524 .
Nor does the rule announced in Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.E.2d 1103 , and subsequently su *452 perseded by the so-called Jencks Act, 18 U. S.C.A. § 3500, encompass grand jury testimony. Pittsburg Plate Glass v. United States, 360 U.S. 395 , 79 S.Ct. 1237 , 3 L.Ed.2d 1323 .
The contention is re-urged by appellant that he was denied due process of law as guaranteed by the Constitution of the United States, under the authority of Turner v. State of Louisiana, 379 U.S. 466 , 85 S.Ct. 546 , 13 L.Ed.2d 424 , because Sheriff Reed, who was a witness in the case, also acted as bailiff and had custody of the jury during part of the trial.
In our original opinion it was pointed out that appellant made no objection to the sheriff’s having custody of the jury and that error, if any, had not been preserved. In view of appellant’s claim of a denial of due process, we have examined the record and find no merit in such contention. The bill of exception, #5, which presents appellant’s claim as qualified by the trial court, which qualification was accepted by the appellant, certified that on one occasion, only, did the sheriff help transport the jury from the courthouse to the place of lodging and that at no time did the sheriff sleep or eat with the jury. Such facts distinguish this case from Turner v. State of Louisiana, supra, where the deputy sheriffs who were the tw,o principal prosecution witnesses were in continuous, intimate association with the jurors — • eating, conversing, and running errands for them during the three days’ trial.
The claim made by appellant in his motion for rehearing that certain evidence obtained under an invalid search warrant was admitted before the jury is not supported by the record. While testimony was presented to the court in the absence of the jury, relative to the issuance and execution of the search warrant, there was no testimony presented to the jury relative to the fruits of the search. The record further reflects that the jury was instructed not to consider any testimony of the witness Ewald relative to what he saw at the barn, which testimony was given prior to any question being raised as to the legality of the search warrant.
In stating the facts in our original opinion upon which the evidence was held sufficient to support the conviction, reference was made to certain testimony given by appellant’s lessor, Allred, to the effect that appellant was always present when the lessor went by the Kruez place. While, as pointed out in appellant’s motion for rehearing, this testimony was not given in the presence of the jury and therefore could not be considered, such fact does not render the evidence presented insufficient to sustain the judgment of conviction.
Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.
Opinion approved by the court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857381. Public record. Not legal advice.