Elliott v. State
| Decision Date | 21 May 1969 |
| Docket Number | No. 42043,42043 |
| Citation | 444 S.W.2d 914 |
| Parties | Leon Bennie ELLIOTT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ashley, Laubach & Watrous, by Jimmy D. Ashley, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is assault with intent to rape; the punishment, 40 years.
Appellant's grounds of error present the contention that the evidence is insufficient to establish beyond a reasonable doubt 'the specific intent to commit the crime of rape'; the contention that the court reversibly erred in allowing the jury to consider appellant's confession as evidence of his specific intent; the contention that the court erred in admitting appellant's confession; and the contention that the court erred in failing to submit appellant's requested charge on corroboration of a confession.
Also raised as ground of error is the admission in evidence of a .22 caliber pistol and of the 'in court' identification made by the prosecutrix and the witness Brand which appellant contends were the result of a 'show-up' conducted in such a manner as to be a denial of due process.
The state's evidence includes the following:
The complainting witness, an 18 year old secretary employed at NASA, on her way to see a girl friend who had just got home from work, noticed a truck following her. After blinking its lights the driver of the truck pulled in front of her and stopped, then backed up and rammed into the front of the complainant's car. Thereafter appellant, in full view of her headlights, came to the side of her automobile, opened the door on the driver's side which triggered the interior lights making possible a full face identification of appellant as the driver of the truck, which she described as an old, dark pickup.
The witness testified that appellant told her to get out of her car. When she refused, he threatened to blow her brains out and made a second threat that he would shoot her, then opened the door and jerked the girl out of her car and started dragging her toward his truck.
The complainant, resisting and struggling, asked what he wanted and could he talk to her or something. Appellant told her again to shut up or he would shoot her and continued dragging her to his truck.
He pushed her against the seat and the girl started screaming. He stuck his finger in her mouth and she bit it. This angered appellant and he started beating her. She was thrown to the ground and the blows to her head were continued.
Her head injuries required 3 or 4 stitches. Her eye was blackened and she had other severe bruises. In her successful struggle to escape from appellant's clutches, the complaining witness sustained a broken wrist.
As the girl was running away, fearful of being shot in the back because of the threats made to her, appellant got in his truck and drove away.
The complainant ran to a nearby house and the police were notified.
The assault was committed about 30 minutes after midnight. Some two hours later, at a point some 25 miles from the scene of the assault, appellant was stopped because of a defective taillight. About an hour later he was released to the Baytown authorities.
Appellant's written statement was introduced in evidence in which he confessed: 'I told her if she did not get out of the car I would kill her,' and confessed:
Appellant's testimony which raised his defense of alibi was not supported by the testimony of another witness.
In rebuttal the state called the witness Mrs. Brand who identified appellant as the man who drove a black truck and who, shortly before midnight, tried to run her off the road by cutting in front of her car. She testified that he finally stopped in front of her, then threw his truck in reverse and backed into her car, got out and came to her car and asked if she was alone. She told him no, that her baby was with her and would he please leave her alone. He 'said he was fixing to drag our cars off the road.'
Appellant, with a pistol in his hand, began to walk to his truck, Mrs. Brand saw the headlights of an oncoming car and jumped out in the road in front of the car to stop it. The car stopped and she started screaming for help. The driver of the car asked 'What seems to be the trouble?' Appellant answered 'We had a little accident, I can't seem to get these bumpers unhooked.'
The driver of the car got out and assisted appellant in releasing the bumpers and Mrs. Brank 'took off and left them standing there.'
Mrs. Brand testified that the pistol identified as State's Exhibit 4 was similar to the gun she saw in appellant's hands. The pistol which had been introduced in evidence as State's Exhibit 4 was found in the black Dodge pickup truck, old model, which appellant was driving when arrested.
Prior to admitting appellant's confession in evidence, the trial judge conducted a hearing in the jury's absence and after hearing all of the evidence introduced, made and filed findings of fact and law in which he found beyond a reasonable doubt that prior to the making of the statement appellant was taken before Judge Barney L. Ward, a judge of the corporation court in the City of Baytown, and that said magistrate informed him of the accusation against him; of his right to retain counsel; his right to remain silent; of his right to have an attorney present during any interview with peace officers or any other governmental agency; of his right to request appointment of counsel if he was indigent and could not afford counsel; of his right to an examining trial and that he was not required to make a statement, and any statement made by him may be used against him.
The trial court further found that prior to making such statement, appellant was warned by Sgt. H. H. Steele, the person to whom the statement was made, prior to any questioning of him by police while he was under arrest, that he could remain silent and did not have to make any statement at all and that any statement he made may and probably would be used in evidence against him on his trial or trials for the offense or offenses concerning which the statement was made; and that he had the right to the advice of a lawyer while law enforcement officers were questioning him while under arrest or in custody; and to a free lawyer if he could not afford to hire one; and that appellant knowingly, intelligently and voluntarily waived such rights prior to and during the making of the statement.
Also the court found that the statement was made by appellant freely, voluntarily and without compulsion, persuasion, threats, assault or battery, or promises or any combination thereof or any other conduct or treatment on the part of any person either at a before the making and signing of said statement.
The court further concluded that such statement was voluntarily given in accordance with all requirements of the Constitution and Statutes of the United States and the State of Texas and in particular in accordance with the Rules of Criminal Procedure of the State of Texas, and was admissible as a matter of law.
The fact that appellant was informed that he had been accused of the offense of 'attempted kidnapping and attempted rape,' rather than 'the offense he was to be charged with committing,' did not render the confession inadmissible.
Appellant contends that the warnings given appellant do not comply with Arts. 15.17 and 38.22 Vernon's Ann.C.C.P. and the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in that: (1) He was not advised of his right to have an attorney present during any interview with the peace officers or attorneys representing the State of Texas.
Sgt. Steele of the Baytown Police Department, to whom the confession was made, testified that he advised appellant that he had the right to have a lawyer...
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...of the actual presence of counsel at the time of any waiver if there has been a prior consultation is not made clear. In Elliott v. State, Tex.Cr.App., 444 S.W.2d 914, this court upheld a waiver made in counsel's absence where counsel consulted with the confined accused at the jail and then......
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