Berry v. State, 58227

• Decision Date: 20 June 1979
• Docket Number: No. 2,No. 58227,58227,2
• Citation: 582 S.W.2d 463
• Parties: Robert James BERRY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 463

582 S.W.2d 463

Robert James BERRY, Appellant, v. The STATE of Texas, Appellee.

No. 58227.

Court of Criminal Appeals of Texas, Panel No. 2.

June 20, 1979.

J. R. Musslewhite, Houston, for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and Edward A. Dodd, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape. Punishment enhanced by one prior felony conviction was assessed by the jury at life.

The prosecutrix identified appellant as the person who raped her at gunpoint in her apartment about 5:00 A.M. on March 21, 1977. She reported the offense to the apartment manager who in turn notified the police. On the evening of the same day appellant called the prosecutrix and asked her to meet him at a restaurant. She suggested that appellant pick her up. The police were notified and appellant was arrested.

Appellant contends that the statement taken from him "was not freely and voluntarily given by him, was the direct result of unlawful force and coercion and findings to the contrary made by the trial judge were against the greater weight of the evidence."

At the hearing on the motion to suppress appellant testified that arresting officer Tyler made the following threat:

"He threatened to blow to blow my head off he told me that if Officer Wade hadn't have been with him, he would have blowed by head off the minute I got out of the car. He told me that when I got to the penitentiary, I was going to get a beating, 'cause I was a rape fiend. And I told him that they didn't do people like that in the penitentiary. And he told me he would arrange for it at the City jail."

Immediately after appellant's arrest he was taken to the office of the apartment complex where the prosecutrix resided. Appellant stated that a security guard slapped him and said "if he ever seen me around that apartment project again, he'd blow my head off." The security guard did not represent himself as being a police officer.

Appellant was turned over "to two other officers" who took him to the police station. Officer Tyler did not accompany appellant to the police station nor was he there when the confession was taken. Appellant testified that the officers who took him to the police station did not threaten or physically abuse him. Officer Trimble took the confession from appellant at the police station approximately an hour and a half after he was arrested. Appellant related that Trimble read and explained his rights to him. Appellant stated that he had been to the Texas Department of Corrections on four previous occasions and that he understood his rights. In response to questions from both the prosecutor and his counsel appellant stated that Trimble did not physically abuse or threaten him. Officer Trimble refuted appellant's testimony that he was given a statement from the prosecutrix to use in making his confession. Trimble testified that appellant did not act as if he were in fear or under any threat and did not tell Trimble that he had been threatened by Tyler or any other officer that he was going to receive a beating in jail. Appellant's contention that the statement was not freely and voluntarily given appears to be bottomed on his testimony that he was afraid of the beating which was threatened by Officer Tyler coupled with the fact that he had received "some amount of beating" following the arrest.

Appellant calls our attention to the fact that neither Tyler nor the apartment security guard was called to refute appellant's testimony. See Farr v. State, Tex.Cr.App., 519 S.W.2d 876; Sherman v. State, Tex.Cr.App., 532 S.W.2d 634; Smith v. State, Tex.Cr.App., 547 S.W.2d 6.

In Brooks v. State, 130 Tex.Cr.R. 561, 95 S.W.2d 136 it was held that a confession was not rendered inadmissible as a matter of law because of the assault by an officer on the defendant which was prior to, disconnected with, and in no way related to the confession. The sheriff testified that he kicked the defendant because he called him a liar. There was no evidence about any threat to the defendant if he did not give a confession. While noting that the action of the sheriff in kicking a prisoner was regrettable, it was concluded that the assault was anterior to the confession, disconnected therewith and in no way related to the confession or any effort to obtain or force a confession.

The totality of the circumstances must be examined to determine whether a confession is voluntary. Farr v. State, Tex.Cr.App., 519 S.W.2d...