Iness v. State, 55612

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation606 S.W.2d 306
Docket NumberNo. 55612,55612
PartiesRoy Clifton INESS, Appellant, v. The STATE of Texas, Appellee.
Decision Date10 September 1980


Appellant was convicted of rape under the former code, Article 1183, V.A.P.C. The jury assessed his punishment at twenty-five years.

The main contention is that the prosecution suppressed evidence. We hold that the report allegedly suppressed was not exculpatory. There must be a suppression of material evidence according to all of the cases before a case will be reversed. The alleged suppressed evidence was not admissible, material or exculpatory. The dissent would adopt a new test that a reversal may be had when suppressed material " 'may have had an effect on the outcome of the trial.' " It would omit that part of the test which requires that material evidence must be suppressed.

For a better understanding of the case, a detailed statement of facts will be given.

The prosecutrix at the time of the incident was twenty-nine years of age, lived alone and suffered from cerebral palsy and a brain defect which caused brain damage. She had been in special education classes until she dropped out after completing the ninth grade and was employed as a babysitter, housekeeper and bowling alley attendant.

At the time in question, the prosecutrix and a friend, Betty, were walking together to a Sambo's restaurant in Odessa. While enroute the pair was approached by Iness who asked if they would like to get something to drink. After a brief conversation, the prosecutrix agreed to go with him under the mistaken assumption that he was a friend of Betty's. The two then drove to a Pizza Hut where they ate and engaged in light conversation. Upon leaving the restaurant, appellant expressed a desire to go somewhere and just talk. The prosecutrix agreed and Iness drove west out of Odessa. She testified that after they left the Pizza Hut appellant's disposition became vicious, and he began to drink from a whiskey bottle. Appellant pulled into an open field near an oil well and demanded that she get out of the car and sit on the hood. The prosecutrix protested but complied because she was frightened. Once on the hood of the car Iness kissed her. After threatening to kill her, he forced her to disrobe in front of the car headlights and commit oral sodomy upon him. At one point she attempted to escape but was caught by him, beaten and forced to submit to anal and sexual intercourse 1 while positioned behind her, again under threats of death. Failing to achieve sexual satisfaction, he drove the prosecutrix back to Odessa and dropped her off at Betty's apartment complex. David Eades, Betty's boyfriend, was the only person at Betty's apartment when the prosecutrix knocked on the door. He described the event as follows:

"A. Well, I opened the door and shocking to see there was a woman, her mouth all bloody and nose had been, blood all over her face and mud on her arm and mud all over her black clothes she had on, she was dressed in black that night.

"Q. Okay.

"A. And then I didn't really know what to do. Called the police.

"Q. All right.

"A. That is what I did.

"Q. Could you describe her emotional state, was she calm, easy going or not or what?

"A. No, sir. She was really disturbed.

"Q. Was she crying?

"A. Yes, sir.

"Q. Was she nervous?

"A. Yes, sir. She, just like, in other words, she was just shaking.

"Q. All right. Was she, could you state whether or not she seemed hysterical?

"A. Yes, she was.

"Q. And did she say what had happened to her?

"A. Well, she made a statement that I understood her to say she had went had coffee with somebody and they took advantage of her and raped her, all really I know."

David Eades testified the prosecutrix was hysterical. She gave him the name of her guardian for him to call. When he could not locate the guardian, he called the police.

When counsel for the defense asked to see the statements that the prosecutrix signed that night, the assistant district attorney informed the court that he knew of only one statement that she signed. The statement that counsel for appellant was furnished and which he introduced for his bill of exception is the complaint signed by the prosecutrix and sworn before Justice of the Peace J. A. Purifoy in Ector County.

Counsel for appellant, when asking for what Officer Hammack wrote, said he believed that the report contained exculpatory statements. There is no contention that counsel for the defense had not seen the statement before the trial.

The statement also contains the recitation, "When we left the hospital Capt. Scott asked if the attacker forced her from the rear and she advised that was correct. This girl has a mental problem and it is hard to get a message across to her.... She did not know where the rape had taken place but it happened in a field somewhere.... He forced her to get on her knees with her head on the ground. Due to what I can understand from her he forced her to commit sodomy."

These statements in the officer's report are not exculpatory. The very first sentence in the report recites that the prosecutrix told the officer that she was raped from the back. The nurse's statement to the officer that she could have meant the rectum does not rule out rape. The prosecutrix testified that there was penetration in the vagina and in the rectum. Here the witness was a victim of cerebral palsy. She was not articulate. Her condition was such that defense counsel attacked her competency to testify outside the presence of the jury. From the report, it would appear that she told of the sodomy and the rape.

When she made the outcry to Eades, she told him that she had been raped. The report does not show any exculpatory statements.

A copy of the complaint made before Justice of the Peace Purifoy was signed by the prosecutrix. Such statement could have been used by counsel for defense to cross-examine the prosecutrix. The first statement in the complaint is:

"I would like to say that I have good reason to believe and do believe that Roy Clifton Iness did Assault Me With The Intent to Rape...."

After reciting what happened before and after he parked, the complaint, signed by her, recites:

"He then got around behind me and entered my rectum with his penis & then finished up with his penis in my vagina & this was all done from the back."

The complaint also contained the statement:

"I have been shown Texas Dept. of Corrections picture # 205343, Roy Clifton Iness and also a snapshot of this same person & I have identified him as being the same person who used force threats to make me submitt to his demands of Sodomy.

"I feel that the facts as contained in this affidavit present probable cause on which to base complaint & I respectfully request that a warrant be issued charging Roy Clifton Iness with the offense of assault with the attempt to commit rape a Felony offense under the criminal statutes of the State of Texas."

This complaint or affidavit was sworn to some two or three days after the date of the commission of the offense. It was apparently typed by an officer or under his direction. It contains conclusions that appellant abducted her with intent to commit rape. It also contains statements of fact that his penis penetrated her vagina. It also contains a statement that Iness used force to make her submit to his demands for sodomy.

These statements or conclusions would show assault with intent to commit rape but it does not take out of this statement that he put his penis in her vagina. The conclusion that, after being shown the photograph that she identified appellant as to the person who used "force threats to make me submitt to his demands of sodomy", does not detract from her recitations of the facts that it was rape.

Counsel for the defense had this complaint and introduced it before the judge. He knew what it contained. He also knew that she was examined at the hospital. He introduced the hospital records with the permission of the court at the penalty stage of the trial.

There is no showing that he did not talk to the nurse who purportedly made the statement to Officer Hammack. There is no showing that he did not talk to Officer Hammack before the trial. There is no showing that he did not talk to Officer Scott who is mentioned in the report. There was more in the complaint than there was in the report which might have been beneficial to appellant.

Taking the evidence of her outcry to Eades that she had been raped and her statement to Officer Hammack that she had been raped and the statements in the complaint that she had been raped and the statements similar to those claimed to be exculpatory, there was no suppression of evidence.

The standard for determining materiality of information withheld from the defense is that of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where, as in the instant case, the material was specifically requested by the defense. United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).

The dissent misconstrues the Brady rule as it applies to documents which are inadmissible at trial. The Supreme Court in Brady upheld the Maryland Court of Appeals' decision to remand that case for a new trial limited to the issue of sentencing; at the same time, the Court upheld the state court's affirmance of the finding of guilt on the ground that the exculpatory evidence was inadmissible on the issue of guilt or innocence. 373 U.S. at 90, 83 S.Ct. at 1198. The Court indicated that when the information withheld is not admissible, its possible effect on the jury's decision is not to be considered:

"A sporting theory of justice might assume that if the...

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