Brown v. State
| Decision Date | 13 December 1961 |
| Docket Number | No. 33781,33781 |
| Citation | 171 Tex.Crim. 692,353 S.W.2d 425 |
| Parties | Cecil Lester BROWN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[171 TEXCRIM 692] Peter P. Cheswick, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, Erwin G. Ernst, Asst. Dist. Attys, Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
Rape is the offense; the punishment, death.
The State's testimony reflects that the complaining witness, Dora Ybarra, 28 years of age and the mother of four children, was employed as a waitress at a cafe. She finished her work at 11:30 P.M. and went to another nearby cafe to eat and meet her estranged husband. Soon thereafter, her husband had an argument with another woman and went out on the street, where he engaged in a fight with some men who beat him and drug him into a car and drove away. The witness went out into the street, screaming and hollering at the other men to leave her husband alone. After they drove away, she started to walk to her home which was about two and a half blocks from that point. As she was walking in the direction of her home, a white car [171 TEXCRIM 693] stopped and a Negro man came up behind her. She said that she tried to get away and that she hollered. At this time, the Negro, assisted by another Negro, slapped her in the face, grabbed her by the hair and pushed her inside of the automobile. She said that it was the appellant Brown who first got out of the car and that he was the one who hit her in the mouth and grabbed her by the hair. They then dragged her into the car, took her purse and removed its contents. After driving several blocks, the appellant tried to force her to have sexual intercourse with him in the car but was unsuccessful. The car was then driven to a place close to the railroad tracks, in the same general area, and she was taken into the high weeds and grass close to the tracks. Her clothing had been ripped from her body. The appellant Brown prevailed over his companions, after they had quarreled to see which would be the first to have intercourse with her. The appellant struck her in the mouth with some brass knuckles which he had in his hand, and she was kicked by his companions. The other Negroes held her hands and feet while the appellant had intercourse with her. She related that after all of the Negro boys present had intercourse with her, she seemed to lose consciousness. Upon regaining consciousness and finding herself alone after the attack, she made her way nude to the home of Gertie Crumeby, a Negro woman. She was allowed to bathe at Gertie Crumeby's house and was given some clothing to wear. The police were called, and she was then removed to the hospital. Later, at a police line-up, she identified the appellant as being one of those who attacked her. The witness identified her clothing which had been torn from her body and also a religious medallion she had been wearing and which had been torn from her neck at the time she was attacked. These items had been found where the offense occurred. She also identified a picture which had been in her purse. She further identified a scrap of paper upon which was a telephone number of a friend of hers. This scrap of paper had been recovered from the car in which it was admitted the appellant and his companions had been riding earlier in the evening.
The witness Amelia Frances Gomez testified that she lived at a hotel. The hotel was close to the cafe where Dora Ybarra's husband had had an argument with the woman and where the unknown men had beat him and placed him in an automobile and driven away. This witness stated that she and the proprietor of the hotel where she lived heard a woman screaming and went out into the street in front of the hotel, where she observed the events about which she testified. She further testified[171 TEXCRIM 694] that after the car drove away with Dora Ybarra's husband she saw Dora Ybarra walking down the street and saw a car pull up beside her. She saw the sppellant, assisted by another Negro, get out of the car and grab the complaining witness by the hair and drag her into the automobile and drive away. She positively identified the appellant, and further related that she identified him in the police line-up the day following the attack. Upon cross-examination by defense counsel concerning why she had not reported the event, and as to whether such an occurrence was common, she stated that 'in Fifth Ward everything happens out there.'
Appearing as a witness, Gertie Crumeby testified that Dora Ybarra came to her house in the early morning hours in a naked condition. She said that Dora Ybarra told her that she had been raped by ten Negroes. She had Dora Ybarra bathe the blood from herself, gave her some clothes and called the police.
Eddie James Cumbo, Jr., testified that the appellant had borrowed his car on the night the offense occurred, that at the time he last saw them the appellant and his three co-indictees and Earnest Murphy were together. The appellant was to return the automobile the same night, but he did not do so and the witness did not obtain possession of it until several days later.
Earnest Murphy testified that the appellant and his three co-indictees took him to his home early in the evening before the time the offense was committed. He also testified that his home was about nine blocks from the place where the appellant and his companions forced Dora Ybarra into the car.
The State introduced the voluntary statement of the appellant made the afternoon following the commission of the offense. In the statement, the appellant relates that he was driving around Houston in an automobile with certain companions, and that:
'When we pulled up to the stop sign, there was a Mexican woman and a couple of Mexican men fighting in front of the cafe. There was a black Buick pulled up near the cafe. I started to drive on, but everybody started hollering 'Turn, man, turn.' I turned to the right and when I got back in front of the apartment house on the corner of McKee and [171 TEXCRIM 695] Conti, the two Mexican men were in the black Buick and the Mexican woman was in the street, and the men were trying to drag the woman into the car. She broke loose and started running down the sidewalk in front of the apartment house towards the next corner, Providence. Busby told me to stop the car and let him out so he could catch her. I stopped and Busby got out and I circled around the same block again. When I got back to McKee and Providence, I could see Busby and the Mexican woman on down across McKee in about the middle of the block. Busby had the woman by the arm, and when I drove up they both got in the front seat with the Mexican woman in the front seat between me and Busby. Glynn and Pickens were in the back seat.
The appellant testified in his own behalf. He told of driving around the City of Houston to various places with his companions earlier in the evening preceding the time of the offense. He further related that after all of his companions had gotten out of the car and he was driving alone, that a Mexican woman hollered at him to stop and to wait a minute, and that he stopped and let her get into the car. He testified that he tried to take [171 TEXCRIM 696] her where she directed him but that his car stalled, and that she told him she could walk the rest of the way. He also said that he did not see her after that time. He would not positively say whether or not the complaining witness, Dora Ybarra, was the woman that he picked up. He said that he did not have intercourse nor did he rape the Mexican woman to whom he gave a ride in the car. The appellant repudiated the confession made to the police officers, and he said that he gave the police officers a statement because they were going to beat him.
Four police officers with the City of Houston police department testified as to their part in the investigation of this offense, including the finding in the automobile in which it was shown that the appellant and his companions had been riding a piece of paper which had come from the purse of Dora Ybarra. The officer who took the voluntary statement from the appellant rebutted the testimony of the appellant that he was induced to make the statement through threats of force.
Dr. Curtis McGinley, a Doctor of Medicine, testified that he examined Dora Ybarra the morning following the attack upon her. He found blood under her chin, a bruise inside her mouth on the upper lip and a deep cut inside the mouth on the lower lip, and a bruise about the left eye. He found numerous scratches on her entire back and buttocks, and an oral impression on her right breast...
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