Hargraves v. State
| Decision Date | 23 September 1987 |
| Docket Number | No. 05-86-00996-CR,05-86-00996-CR |
| Citation | 738 S.W.2d 743 |
| Parties | Frank J. HARGRAVES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John H. Hagler, Dallas, for appellant.
Teresa Tolle, Dallas, for appellee.
Before HOWELL, STEWART and THOMAS, JJ.
Hargraves stands convicted of aggravated sexual assault. After a finding of guilty by the jury, the trial court assessed punishment at forty-five (45) years in the Texas Department of Corrections. In two points of error, appellant contends that: (1) the evidence is insufficient to support the conviction and (2) the admission of an extraneous offense involving an assault and attempted robbery on a different complainant constituted reversible error. Because we agree with appellant's point of error number two, the judgment is reversed and remanded for a new trial.
In point of error number one, appellant contends that the evidence is insufficient to support the conviction. The indictment alleges that appellant did:
then and there knowingly and intentionally cause penetration of the female sexual organ of [Martha F.], hereinafter called the complainant, a person not the spouse of the defendant, without the consent of the complainant by means of an object, to-wit: the sexual organ of Frank Hargraves, and in the course of this same criminal episode, used and exhibited a deadly weapon, to-wit: a knife.
The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983); Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Crim.App.1983). Utilizing this standard, we now review the evidence in this case.
The complainant, a thirty-eight year old female, testified that she went to see a concert of the Canadian rock group, Rush, with her stepson, Terry, at Reunion Arena on the night of January 12, 1986. While in the arena, Terry ran into a group of friends and decided he would sit with them near the front of the stage. Terry showed complainant where her seat was in the balcony. They agreed to meet after the concert at the base of the stairs leading to the balcony. After the concert was over, she went to the prearranged meeting place. When Terry did not appear, she decided to go search for him. Dallas police officers assigned for crowd control were ushering everyone outside the arena, so complainant went outside the door. She stated that she then decided there may have been a miscommunication. Complainant walked toward the parking lot to look for the car. When she saw that the car was gone, she thought that Terry must have retrieved the car and gone back to pick her up. At this time, complainant started walking back to Reunion Arena.
Suddenly she was approached by the appellant who offered to get a taxi to take her back to the front gate. After a brief conversation she accepted and got into a nearby taxi with the appellant. Shortly thereafter, complainant became aware the cab was proceeding away from the arena. Appellant explained that they would go to his sister's house where she could use the telephone and he would borrow a car to bring her back downtown. According to complainant, during the cab ride appellant smoked marijuana and offered the complainant some although she did not accept his offer. They arrived at a West Dallas housing project where they exited the cab and entered one of the apartments. A black woman introduced to complainant as appellant's sister was at the apartment. Complainant, by this point confused and scared, told appellant she must be going. She stated that appellant's demeanor changed dramatically. He struck her across the face and said that she was "a white bitch that needed to learn some respect!" Appellant then pulled a knife and held it to her temple. After smoking another marijuana cigarette and insisting that she do the same, appellant asked complainant "have you ever had any black dick?" The reply being in the negative, appellant said "well, I'm going to show you how good it is." Appellant then ordered her to remove all of her clothes. When the complainant replied that appellant really did not want to do that, she was struck again and told to "shape up and have some respect." Appellant then proceeded to rape the complainant, ejaculating on her stomach. Appellant then demanded that complainant give him a necklace which she was wearing and then commanded her to get dressed. Once she was dressed, appellant told her they would go to a nearby pool hall where she could use the telephone and call a cab. As they walked toward the pool hall, she was told to behave, do as he said, and not forget that he had a knife. They played pool and drank. While there, appellant told her to kiss him and put her legs over his lap, which she did. Complainant explained that she did not seek help from anyone because she thought they were all friends with appellant and she was afraid. Appellant decided to leave and forced her with threats to leave with him. According to complainant, she was then taken to another apartment where appellant forced her to expose her breasts to an old man on a couch. Appellant told her that this man would pay him fifty dollars for this. At some point complainant went into another room occupied by a teenage boy. She asked the boy for help but he ignored the request.
Appellant then took complainant to yet another apartment, where she was again threatened. She cannot remember anything that occurred at that apartment once she was ordered to go upstairs.
Finally, they returned to appellant's apartment. Complainant explained that during this ordeal she did not try to escape because she was not familiar with the area and was afraid that if she was caught, she would be killed. Once inside the apartment appellant again ordered complainant to remove her clothing. When complainant hesitated, she was struck once again. Appellant then made her get on her hands and knees and engage in oral sex. When that was finished, appellant took her into the living room and raped her a second time, again ejaculating on her stomach. There was another man sleeping in the apartment, later identified as "Mike", who woke up shortly after appellant finished raping the complainant the second time. Mike, who said he was a drug dealer, was told by appellant to watch complainant and not let her go. After appellant went into the bedroom and closed the door, Mike started taking off her clothing. Mike then told her that he was going into the kitchen to get a "rubber," and when he returned, he raped her. Complainant testified that she did not remember whether Mike utilized a condom. Sometime after this assault, she was able to escape from the apartment and run to a nearby business where she called her husband and the police.
The officer who responded to the call testified that before transporting complainant to Parkland Hospital, they attempted to locate the particular apartment, but were unable to do so. He further stated that she had a slight smell of alcohol about her but that she did not appear to be intoxicated nor did she appear to be under the influence of alcohol.
Dr. Alan Munoz, complainant's examining physician, testified that at the time she was brought in by the police, her general appearance was good and she was emotionally stable. This witness further stated that there were no signs of physical abuse such as lacerations or swelling. The doctor's record did not indicate that complainant informed him that she had been struck in the head.
Patricia Bucha, a forensic serologist, initially testified that the tests indicated that appellant could not be included in the population that donated the seminal fluid taken from the complainant. In response to further questioning, she stated that when there is more than one seminal fluid present, no interpretation can be made as to blood type of the donors. Therefore, she could not include or exclude appellant.
Officer Roberta Adame, the officer assigned to this case, testified that the complainant came to her office the day after the assaults for questioning. From complainant's description, she concluded that they were searching for a young black male, living in the projects, with massive scarring on his back. Officer Adame put together a photographic display of six photos. Complainant examined them and said none were the men who raped her. According to this witness, a few days later a report made her focus upon appellant, who was in jail in connection with another offense. This officer went to the jail and took pictures of appellant, including the massive scarring on his back. On that same day, the officer put together another photographic display with appellant's picture included. Complainant immediately recognized appellant as one of the men who raped her.
Officer Mark Sears testified he arrested the defendant on January 20, 1986 in connection with another incident. According to this witness, the appellant gave false names.
The first witness for the defense was Wanda Jackson, appellant's cousin. She testified that appellant and a white woman came to her apartment at around 2:00 a.m. on January 13. Mike and another woman were also present. According to this witness, they all sat around laughing, talking, drinking, and listening to music. She could not recognize the victim as being the woman in the apartment. She stated that the woman appeared to be with Mike. Appellant and the lady asked her if she could spend the night in Ms. Jackson's apartment, but Ms. Jackson said no so they left.
Appellant then testified in his own behalf. According to appellant, he walked up and joined a conversation between complainant,...
To continue reading
Request your trial
-
Arnold v. State
...at 259, 108 S.Ct., at 1798, 100 L.Ed.2d, at 295; Harris v. State, supra, (Clinton, J., dissenting at 10); see Hargraves v. State, 738 S.W.2d 743, at 749 (Tex.App.--Dallas 1987) PDR refused. Thus an appellate court must be able to find an error harmless beyond a reasonable doubt. Rule 81(b)(......
-
Wiggins v. State
...whether the relevance value outweighs the prejudicial potential." Boutwell, 719 S.W.2d at 174. See also Hargraves v. State, 738 S.W.2d 743, 748 (Tex.App.--Dallas 1987, pet. ref'd). This Court has broken down the test into two primary parts: (1) whether the extraneous offense is relevant to ......
-
Ali v. State
...intent is strong because of an otherwise innocent act, extraneous offenses are more likely to be probative than prejudicial. Hargraves v. State, 738 S.W.2d 743 (Tex.App.--Dallas 1987, no pet.); see Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.1985) (op. on reh'g). In the present cas......
-
Montgomery v. State, s. 05-87-00677-C
...is substantial. The State must prove beyond a reasonable doubt that the error did not contribute to the punishment. See Hargraves v. State, 738 S.W.2d 743, 749 (Tex.App.-Dallas 1987, no pet.). In Rose the Court of Criminal Appeals determined that the State had met that burden. In making tha......