Siros v. State, 38621

• Decision Date: 26 January 1966
• Docket Number: No. 38621,38621
• Parties: Walter Lee SIROS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 547

399 S.W.2d 547

Walter Lee SIROS, Appellant, v. The STATE of Texas, Appellee.

No. 38621.

Court of Criminal Appeals of Texas.

Jan. 26, 1966.

Rehearing Denied March 16, 1966.

Luther E. Jones, Jr., Corpus Christi, Percy Foreman, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for rape; the punishment, death.

The evidence of the state reveals that while the prosecutrix, twenty years of age and seven months pregnant, and her husband were on the way home after visiting in the home of her cousin, their automobile ran out of gasoline and they began walking. When near home about 12:30 A.M., the husband having preceded the prosecutrix across the street at an intersection, she was suddenly grabbed by a man from the sidewalk and shoved into an automobile driven by another man. On hearing her scream and call his name, her husband ran toward her as she was being dragged into a car, which sped away before he could reach her or overtake the car. However, he did get within ten feet of the automobile which he said was a 1962 Tempest with a red body and a white canvas top, bearing license number UE 833. He immediately notified the police and went with them to the place where the prosecutrix was abducted, and there recovered her purse and her glove (one). The husband next saw his wife, the prosecutrix, at the police station.

While testifying, the prosecutrix identified the appellant as the man driving the car at the time she was abducted, and when Ronald C. Rust momentarily appeared in the courtroom, she identified him as the man who grabbed her, lifted her from the street, and shoved her into the car. The appellant and Rust shoved her down between the front bucket seats and beat her, pulled her hair, and tore her clothes. When she asked to be released the appellant said, 'You are the third one tonight. You are not going to get out of this alive, and you have no chance, so you lay there and you shut up, or you are going to die now.' On telling them she was seven months pregnant and worried about her baby, she testified that she believed it was the appellant who said, 'If you don't shut up, if you don't lie still, if you don't quit talking, I am going to hit you so hard that I am going to mess up your insides so much they are going to be mush, and you are not going to be able to talk; you are not going to be able to live, and that baby is not going to live, either.' After travelling several miles and turning onto a dirt road they stopped and walked down a slope in a wooded area where the appellant said he was going to kill her, and they began pulling off her clothes. She removed the rest of her clothing, with the hope they would spare her life, and then they knocked her down on the ground, and the appellant placed his private parts into her private parts without her consent. While he had intercourse with her as she lay nude on the ground, Rust was 'using (her) breast' by 'biting, pulling and sucking.' Then Rust had intercourse with her. They took her back to the car, leaving her panties and girdle at the scene. While Rust was driving, the appellant was getting into position to have intercourse with her again, at which time Rust became sick and appellant began driving. Soon after a tire blew out they stopped the car and shoved her down an embankment into a deep ravine and drove away. Shortly thereafter, she found help at a residence. The officers were notified and arrived about 2:30 A.M., and took her to a hospital.

In response to a police radio dispatch, Officers Kuehn and Sieckmann apprehended the appellant, about 2:30 A.M., as he was driving a 1962 red and white Tempest Pontiac convertible with license number UE 833 and accompanied by Ronald C. Rust. The car had a flat tire which was shredded and appeared to have been driven some distance. Officer Kuehn expressed the opinion that appellant was not intoxicated when apprehended.

Rust accompanied the officers to the scene of the crime where they recovered a pair of women's panties and a girdle which were later identified by the prosecutrix as being hers.

Seminal stains were found on the undershorts worn by appellant at the time he was apprehended. Head hairs on appellant's trousers were found to be identical with the head hair of the prosecutrix, fibers from the coat worn by the prosecutrix were like those found on the shirt worn by appellant when apprehended, and the dirt on appellant's shoes and trousers was identical to the dirt at the scene of the crime.

The evidence reflects that immediately after the prosecutrix was released she was crying and hysterical, there were bruises and abrasions on her back, shoulders, side, and knee, her leg was bleeding, and there was a knot on her head. Her lips, cheeks and eyes were swollen, and there were teeth marks on her left breast, and her clothing was bloodstained and muddy.

Testifying in his own behalf, the appellant stated that he was twenty-three years of age, six feet and one and one-half inches in height, and normally weighed 225 pounds; that he had been convicted of felony theft in 1958, and also convicted in 1960 for assault with a prohibited weapon, with punishment assessed at four years in the penitentiary.

The appellant further testified that while Rust was driving...