Vester v. State

• Decision Date: 23 April 1986
• Docket Number: No. 1017-83,1017-83
• Citation: 713 S.W.2d 920
• Parties: Gary Lynn VESTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 920

713 S.W.2d 920

Gary Lynn VESTER, Appellant, v. The STATE of Texas, Appellee.

No. 1017-83.

Court of Criminal Appeals of Texas,

En Banc.

April 23, 1986.

Mackey Hancock, H. Grady Terrill, III, Ralph H. Brock, Lubbock, for appellant.

John T. Montford, Former Dist. Atty., Jim Bob Darnell, Dist. Atty., Ruth Cantrell, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a jury conviction for first degree murder. Punishment assessed by the jury was for a period of fifty years.

On appeal the appellant, inter alia, urged that the trial court erred in failing to suppress the prosecutrix's in-court identification, alleging that the pre-trial identification procedure (hypnosis of the prosecutrix) violated his due process rights under the United States Constitution. The Amarillo Court of Appeals affirmed the conviction. Vester v. State, 684 S.W.2d 715 (Tex.App.--Amarillo 1983).

We granted appellant's petition for discretionary review to consider the following claims. First, whether the Court of Appeals erred in holding that the prosecutrix's in-court identification was of independent origin and not as a result of hypnotically-induced testimony resulting from unnecessarily suggestive pre-trial identification procedures. Second, whether the Court of Appeals erred in holding that hypnotically-induced testimony is admissible in Texas. Our resolution of the first ground of error makes it unnecessary to address the second ground of error at this time. We affirm appellant's conviction.

The evidence at trial showed that in the afternoon of March 31, 1978, the prosecutrix, Edelia Ybarra, bought a six pack of beer on her way home from picking up her sisters from school. She drank two of those beers prior to a 7:30 p.m. supper, and opened up a third beer after supper. At around 10 p.m., the deceased, Robert Rios Rivera, came around for Ybarra. The two of them carried on a conversation "for a while," with the deceased asking Ybarra to accompany him to the liquor store. After changing clothes, Ybarra went with the deceased in his car to the liquor store. She was still drinking her third beer of the day. At the liquor store they purchased two six packs of beer, and then got back in the car and headed back the way they had come. Ybarra testified that during the course of the evening she drank one of the beers from the two six packs and that she thought the deceased drank two.

After stopping on a dirt road for the deceased to "use the restroom," the couple drove "to a store there on East Broadway" to purchase some cigarettes. They then drove out East 19th, just outside Loop 289, to a dirt road. The deceased turned down this dirt road and parked "by a bunch of trees." Ybarra could see the Loop from where they parked. The prosecutrix and the deceased eventually engaged in sexual intercourse in the front seat.

After intercourse, the deceased got out of the car to use the restroom. Upon his return, the deceased got into the back seat of the car and asked Ybarra to do the same. At that point, Ybarra testified that "somebody hollered in the back, 'get out you Mexicans.' " Ybarra, thinking it was the police, asked "Who is it?" She testified that the deceased then said, "you b_____ m_____ F_____s, or something like that." She further stated that at this time she could not see anyone outside the car but observed that the deceased had been shot "in the mouth."

A man, whom she later identified as the appellant, then told Ybarra to "get in the back seat," which she did. Ybarra could see the appellant's face through the rear window when he approached the car and stuck a gun through the window. Appellant was 10 inches from the prosecutrix at this time.

The appellant shot the deceased again, causing the deceased to slump over Ybarra who was, by this time, screaming and crying. The prosecutrix then crawled over the deceased's body, exited the car on the driver's side and faced the two men standing outside the automobile, the appellant being "right in front of [her]." The appellant then told Ybarra to walk in front of him "to where the tree was." Having complied, the appellant then raped the prosecutrix. During the rape, the prosecutrix could see appellant's face, there being no camouflage. The other man at this time was throwing the deceased out of the car.

After the rape, the appellant forced the prosecutrix to walk in front of him back to the car, while the other man removed the clothes from the body of the deceased. The prosecutrix stated at trial that she first saw the other man's face when he "was telling the one that raped me [the prosecutrix] he had to get rid of me." That man then told Ybarra to take the deceased's watch off, which she did, giving it to that man (appellant's companion). The appellant and the other man then discussed killing the prosecutrix. Taking no action at that time, appellant's companion handed the prosecutrix her clothes, as she was still unclothed at that time, having been forced to strip when she was raped.

The two men once again discussed "getting rid" of the prosecutrix. During the discussion, both men's faces were clearly visible to appellant. The appellant then stated that he was going to let the prosecutrix go, but "that if [she] told, he would get [her] anyway." After additional threats from both men, the prosecutrix was told to "start walking." She began to walk away, but had not gotten far when the appellant called her back. Complying with appellant's order, she again stood face to face with him. After the prosecutrix cried and begged the appellant not to hurt her, he told her to "keep walking and don't turn back."

The prosecutrix then "walked several ways" and saw the two men drive off in the deceased's car. She walked and ran until she came to some houses, where she was assisted and the Sheriff was summoned. Deputies Keesee and Bohanon arrived at the house where the prosecutrix was and, after calming her somewhat, took her to help find the scene of the crime. At this point (the early morning hours of April 1, 1978), the Lubbock County Sheriff's office "processed" the scene and began its investigation.

Deputy Keesee testified that, a day or two after the offense, he "took [the prosecutrix] to the Lubbock Police Department. They pulled their mug shots of the known violent criminals and she was unable to pick out one." Deputy Keesee further testified, however, that to his knowledge, the appellant's picture was not present in any of the mug books viewed by the prosecutrix.

Approximately one week after the incident, Deputy Barclay requested the prosecutrix to look through a group of pictures to determine if there was a photograph of either of the two men in the stack. She went through the stack and stopped at the appellant's picture. She responded, "That's him," or "I think that's him," "That looks like him," or words to that effect. The deputy then asked her, "What do you mean that looks like him?" She answered, "That's him." The deputy further inquired, "Are you positive?" She said, "I'm almost positive."

Deputy Barclay testified that he arranged to have the prosecutrix hypnotized hoping to "confirm the identification a little further" and to "[g]et her settled down where she could, maybe recall a few more details" of the incident. On May 18, 1978, a hypnotic session was conducted by Travis McPherson, the Sheriff of Deaf Smith County, Texas, and a trained forensic hypnotist. The session took place at the D.P.S. offices in Lubbock. The prosecutrix did not know that McPherson, who was dressed in plain clothes, was a law enforcement officer. Deputy Barclay gave McPherson a group of about five pictures to use in the hypnotic session. However, he did not relate to McPherson the details of the incident, the suspect's name or his picture. Deputy Barclay, Texas Ranger Joe Hunt and D.P.S. polygraph operator, Ron Rogers, observed the hypnotic session through a two-way mirror and heard the dialogue through a sound system.

The tape of the hypnotic session reveals that after a rather lengthy process of placing her in an "hypnotic state," the prosecutrix recounted several details of the events of the evening of the incident. Concerning identification, McPherson tried without success to build a composite drawing of Robert's assailant and the prosecutrix's rapist. While the prosecutrix was in the "hypnotic state" McPherson asked her to fix the assailant's image in her mind's eye. Then he would ask her to open her eyes and view one of the photos from the array for identification purposes. When the prosecutrix saw the appellant's picture, she identified him as the deceased's assailant and her rapist.

The tape further reveals that the prosecutrix had a cough at the time of the hypnotic session. On numerous occasions during the session, the prosecutrix's hacking cough erupted and disturbed her "hypnotic state." After each coughing episode, McPherson would attempt to restore the prosecutrix's "hypnotic state" by asking her to take a drink of "lemonade," telling her to relax and encouraging her "to go deeper." At the conclusion of the session and after the prosecutrix had been brought out of the hypnotic state, she repeated her identification of the appellant.

At a later date and in an effort to enhance the prosecutrix's memory regarding the role and identity of the co-defendant, McPherson again attempted to hypnotize her, but was unsuccessful because her "hacking cough" repeatedly defeated his efforts. At a final hypnotic session, which is essentially unrelated to the case before us, McPherson conducted a session concerning the co-defendant.

The appellant filed a motion to suppress the prosecutrix's identification alleging, inter alia, that it resulted from undue suggestions placed in the prosecutrix's mind at the time of the hypnotic...