Graham v. State
| Decision Date | 10 May 1978 |
| Docket Number | No. 53462,53462 |
| Citation | 566 S.W.2d 941 |
| Parties | Richard Lee GRAHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for aggravated rape. The jury assessed punishment at sixty years.
The offense was committed on September 2, 1974. On December 2 appellant was found incompetent to stand trial. Another jury found him competent to stand trial on September 8, 1975. At trial appellant plead not guilty by reason of insanity, and the jury found him sane at the time of the offense and guilty on September 16.
On appeal he contends, (1) the jury's verdict finding him sane at the time of the offense was against the overwhelming weight and preponderance of the testimony, (2) the trial court erroneously refused to allow him to inform the jury during the selection process of the civil alternative to the criminal sanction, (3) the jury instruction on the insanity issue was improper, and (4) the prosecutor made improper, prejudicial jury argument.
Appellant's first ground of error asserts that the jury's verdict on his insanity defense was against the overwhelming weight and preponderance of the evidence. He relies on Kiernan v. State, 84 Tex.Cr.R. 500, 208 S.W. 518, and Gardner v. State, 85 Tex.Cr.R. 103, 210 S.W. 694.
The offense was committed on September 2, 1974. Thus, V.T.C.A., Penal Code Sec. 8.01 was in effect and provides the standard for this issue. Sec. 8.01 provides:
Since this issue is identified as an affirmative defense, the accused must carry the burden of proof by a preponderance of the evidence. V.T.C.A., Penal Code Sec. 2.04(d). Other procedural matters relating to the issue are provided in Art. 46.03, V.A.C.C.P.
At the guilt stage of the trial three witnesses testified for the State, and the defense presented the testimony of two psychiatrists. The State called the victim (G ), the investigating officer who saw the victim shortly after the crime, and the physician who examined her. The defense witnesses were the only witnesses to give expert testimony on the insanity issue. Consequently, appellant argues there was "uncontroverted and undisputed testimony from expert witnesses as to Appellant's insanity at the time of the commission of the offense. . . ." and there was "no evidence to rebut the defense's testimony regarding the insanity of the Appellant at the time the crime took place. . . ." The State, in reply, relies on the victim's testimony regarding appellant's behavior and statements on the night of the offense, and suggests there are conflicts within and between the experts' testimony. To consider this issue it is necessary first to summarize the testimony of G (the victim) and of doctors Raines and Weddige (the psychiatrists).
G testified that on September 2, 1974, at about 8:30 p. m., appellant came by her house and invited her to go get some beer with him. She was previously acquainted with appellant through mutual friends. On the way toward Buffalo Lake they stopped at a liquor store. After appellant bought a six pack of beer, they drove toward Slaton. Appellant was drinking but G did not drink much. About twenty minutes from leaving G 's house, appellant stopped the car on the road and got out "to use the bathroom." When he got back in the car he tried to kiss G who told him she did not want to, and told appellant to take her home. He refused and she said she would walk home, and started walking down the road. Appellant then yelled for her to get back in the car and he would take her home.
Appellant started driving back to Lubbock, then turned off on a narrow dirt road. It was dark and he was still drinking. He stopped the car again and went around to G 's side of the car and tried to kiss her again. When she refused, he jerked her from the car, threw her to the ground, and ripped her blouse open. G testified appellant kept saying he wanted her and she said she did not want to. Appellant hit her several times and hit her in the left eye with his fist. G testified, "Then after he hit me and all, I guess he come back to his senses or something and then he got out there and he helped me up and he started apologizing, and he said did I do that, I didn't mean to do that, and stuff like that." She asked appellant to take her home, but he was afraid to. She assured him it would be all right, and said they should go to the store to get gauze, tape, and ice to bring the swelling down. Appellant expressed fear that her parents were at her house and that she would go to the police. She told him she would say some girls ganged up on her and beat her up. They got in the car and started toward Lubbock.
Appellant stopped the car at a store and bought gauze, tape, ice, and two six packs of beer. He next drove to his house where he went inside for ten to twenty minutes. They then continued toward Lubbock. Appellant again turned the car off on a dirt road and in reply to G 's question said they were going to see a friend. He next stopped the car on a dirt road, put a sharp object to G 's throat, and tied her hands behind her back with the tape he had bought at the store. He then drove to a drainage tunnel near 42nd and A, removed the cover, and ordered G to enter. There was no light in the tunnel, but appellant had brought a flashlight. He told her he had many places he could hide her, that no one would find her, and that he did not know whether he was going to kill her or not. G was scared and figured he would do anything. He told her she could scream all she wanted and no one could hear her. Then he untied her hands and told her he would see how fast she could get her clothes off or he would kill her. After she undressed, he tied her hands back together.
G recounted the sexual assaults that followed. "Then he started making me have oral sex with him and call him master and how much I liked it and how much I enjoyed it." She complied because she could not avoid it. There followed acts of sexual intercourse with G forced to lie on the cement with her hands tied behind her back. Appellant accomplished three acts of vaginal intercourse and three acts of anal intercourse. He then tied her hands up over her to a pipe with her belt. As he started to leave her there he told her not to yell, "(B)ecause if I did he would kill me and if he didn't his partner would and his partner was death. . . ." After leaving briefly appellant returned and said he would see how loud she could scream. He whipped her on the back and legs with her belt. G testified that after the whipping, After she dressed he helped her out of the tunnel and they went to the car. When she realized her purse had been forgotten they returned to the tunnel where he looked for it without success.
Appellant feared taking her home and she convinced him she would tell her parents that some girls had ganged up on her and that she would not go to the police. He let her out of the car one block from her home. She walked up to her house around 2:00 a.m. and found her boyfriend and other friends waiting for her.
On cross-examination of the victim the following information was elicited:
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