Boyd v. State

• Decision Date: 14 June 1989
• Docket Number: No. 09-88-321,09-88-321
• Citation: 774 S.W.2d 37
• Parties: Warren Nathan BOYD, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 37

774 S.W.2d 37

Warren Nathan BOYD, Appellant, v. The STATE of Texas, Appellee.

No. 09-88-321 CR.

Court of Appeals of Texas Beaumont.

June 14, 1989.

Discretionary Review Refused Oct. 4, 1989.

Dennis Powell, Orange, for appellant.

David P. Bosserman, Orange, for the State.

OPINION

BROOKSHIRE, Justice.

By indictment the Appellant was charged with an aggravated sexual assault. He pleaded "not guilty." In a juried proceeding the triers of fact found the Appellant guilty of aggravated sexual assault. Appellant Boyd opted for the trial judge to assess punishment. The trial judge sentenced the Appellant to twelve years in the Texas Department of Corrections.

The Appellant bases his appeal on ten separate points of error. The first is that the trial court erred in overruling the Appellant's objections to the final argument of the prosecutor. Appellant argues that the prosecutor's orations were outside of the record. One version of the evidence was that the Appellant and the co-defendant rather brutally sexually attacked the Complainant after she was picked up by the two men when the Complainant's car broke down. Later, on a wooded road two bystanders saw suspicious activity and called the Sheriff's Department. The bystanders did not know any of the antagonists or the victim. The bystanders had observed the victim being dragged down a dirt road. A shirt had been draped over her head like a hood. The Complainant-victim was crying something like: "Please, don't; please, don't".

The law enforcement personnel quickly arrived at the scene. They found the victim with the shirt still over her face. The victim was being held by a co-defendant; the co-defendant was hiding in some brush or some tall bushes. The Appellant had apparently remained with the automobile involved in the episode in an effort to mislead the peace officers away from the immediate area of the assaults.

A nurse testified to noticeable red marks around the victim's throat. The victim's own testimony narrated how a leather shoestring had been positioned around her neck in the automobile. She said she was choked. She said that a shirt was placed over her face. She stated she feared for her life. At the threshold the Complainant admitted that she herself was on probation at the time of the trial for the burglary of a habitation. Her probation period was ten years. She had also been convicted of a Class C theft. She further explained that on the date in question her car broke down and she was picked up by two men. She characterized them as being calm. She stated: "We smoked a joint." She also stated that she had one beer but she didn't finish drinking all of the one beer. She stated definitely that she was not intoxicated.

She affirmed that she knew that a term and condition of her probation was that she was not to smoke marihuana and she realized that the smoking of the one joint of marihuana was a definite violation of the terms and conditions of her probation. She acknowledged that another term or condition of her probation was that she was "to stay away from alcohol." The men promised to take her to St. Elizabeth Hospital where the victim's boy friend apparently was a patient. However, they started speeding in the opposite direction down the highway headed toward Mauriceville on Highway 12.

While speeding toward Mauriceville the victim definitely stated that a leather shoestring or lace from a man's work boot went around the victim's neck. It was placed around her neck by the man seated in the back seat. The Appellant was the driver of the car. Shortly thereafter, she was told to get in the back seat. At that time a white T-shirt was placed over her face. The victim swore that after she was in the back seat that the man driving began fumbling between her legs with his hand. The car was a small one. The man in the back seat began fumbling with the Complainant's breasts. She then swore that the heavy leather boot shoestring was put around her neck. She was in fear for her life. She stated that she thought she very well might be killed. She stated she was definitely kidnapped and she thought that she would be seriously injured. The car swerved off Highway 12 and went onto a very bumpy road. The victim testified that the driver kept saying "We're going to get caught here, we're going to get caught here." She further testified that the man in the back seat--not the Appellant before us--said: "Oh, no, we're not; no, we're not; just keep going down this road."

She said she was yanked out of the car. She was also pushed. All she could see were rocks, but she heard water dripping off and she said to herself: "Oh, no, they're going to kill me and they're going to throw me in the water." The victim said that the antagonists took her half a mile from the car and then they laid her down in the grass, and they commenced taking her clothes off. The victim swore that while she was being taken from the car she pleaded: "Please don't hurt me; just, please, don't hurt me." When the three arrived at a wooded area surrounded by many kinds of bushes, the men finished taking the clothes off of the victim and then the victim said the Appellant got on top of her and started sexually assaulting her. She definitely swore the first sexual assault against her was committed by the Appellant/Defendant. The victim testified that the Appellant completed the act of sexual intercourse with her. Then she stated that the other man, described as a frizzy-haired guy, got on top of her and started having sex with her. Later the second male made the victim get on her hands and knees and the second male proceeded with further sexual intercourse. After the sexual assaults were over, the antagonists took the victim back to the car and offered her more beer and a tobacco cigarette.

Against this background of evidence the defense counsel argued that the victim knew that she had been put on probation in 1986 for ten years for the burglary of a habitation and she knew that she was going to be brought before a certain district judge who was described as a tough man, and she knew that she had violated the rules of her probation and that she would be sent to prison, probably for a number of years. The argument was then made by defense counsel that when the victim realized that she was going to be sent to prison for ten years her mind quickly reacted and came up with the solution of "yelling rape" so that she would not be a probationer caught out partying. The defense argument was that she fabricated the rape story to place herself in the position of being a victim.

We conclude that the prosecutor's remarks were in answer to the defense counsel's closing argument. The prosecutor stated that the defense counsel knew that it was rare on a motion to revoke probation for the smoking of a marihuana joint or the drinking of a beer that a probationer would be sent off to the Texas Department of Corrections for ten years. The prosecutor further argued that the trial judge had a lot of discretion in hearing and deciding motions to revoke probation. He did comment to the jury that the trial judge would have the right to amend the probation by changing the terms and conditions of the probation. See Franklin v. State, 693 S.W.2d 420 (Tex.Crim.App.1985). The State's argument was made in reply to the orations of defense counsel. There was no error; there was certainly no reversible error. Scott v. State, 340 S.W.2d 52 (Tex.Crim.App.1960). Because of the overwhelming evidence in this case, we decide that if the State's argument was improper, then it was harmless because of the high valuational characteristics of the evidence of guilt in this case against the Appellant Boyd. See Garrett v. State, 632 S.W.2d 350 (Tex.Crim.App.1982).

Point of error two states that the trial court erred in overruling the Appellant's motion to suppress confession. Although confusing at one point, the record shows that the Appellant was read his Miranda rights, once by an Officer Barnes and once by Officer LaChance. Officer LaChance then refreshed his memory as to which of the two defendants he had read the Miranda rights to by reviewing a Miranda card signed by him as well as the Appellant.

This Miranda card was entered into evidence as State's Exhibit 4. State's Exhibit 4 reads: "I acknowledge that I have been given my Miranda (Art. 38.22 CCP) warnings." It was signed "Nathan Boyd" and dated 06/11/88 at 6:20 p.m. with the place noted as being Cow Bayou, about 1000 feet south of Highway 12, and given by Officer LaChance. The written statement of the Appellant itself contained the appropriate warnings. The oral confession was not introduced until the rebuttal stage of the trial after the Appellant himself had taken the stand and testified to an altogether different narrative of the events.

The Appellant was called as a witness in his own behalf. He testified that he was on probation in Newton County for burglary. His testimony can be summarized as follows: he and his friend Steven Leger left Old Salem and drove to the beer store at Vidor. Steve Leger bought a six-pack of Busch beer. They were hailed down and stopped by the Complainant. She hollered that she needed a ride. They took her to her mother's house to leave a note. The Appellant said when the Complainant first got in the car she seemed to want to party. The Complainant first asked if the two men smoked and the victim fired up the joint of marihuana and the three smoked it. The Appellant testified that the victim drank one beer on the way to her mother's apartment and then she drank another beer riding down Highway 12. The Appellant further swore that while they were in front of the apartment of the victim's mother, the victim told the men to wait. She left her purse on the floorboard and she handed Steve Leger, the co-defendant, some weed and told him to roll up some joints. When the victim came back, according to the Appellant, she got in the car and said...