Gaudette v. State

713 S.W.2d 206, 1986 Tex. App. LEXIS 7895
CourtCourt of Appeals of Texas
DecidedJune 30, 1986
DocketNos. 12-84-0128-CR, 12-84-0129-CR
StatusPublished
Cited by7 cases

This text of 713 S.W.2d 206 (Gaudette v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gaudette v. State, 713 S.W.2d 206, 1986 Tex. App. LEXIS 7895 (Tex. Ct. App. 1986).

Opinion

COLLEY, Justice.

On March 30, 1984, the grand jury of Nacogdoches County returned two indictments against Valmore Joseph Gaudette, charging that on March 7,1984, he committed the offenses of aggravated sexual assault and aggravated kidnapping of G.B., a female, who at the time of the alleged offense was fifteen years of age. The cases were consolidated and tried before a jury who convicted Gaudette of the offenses and assessed his punishment in each case at life imprisonment and a $10,000 fine. Gaudette urges eight grounds of error. We affirm.

The evidence reveals that Gaudette abducted G.B. on March 7,1984, at about 3:30 p.m., forcing her into his automobile after he accosted her as she walked along State Highway No. 259 in Nacogdoches County. Gaudette drove to a secluded location where he forced G.B. to remove her clothing. He tied her hands and feet together and had sexual intercourse with her. He then returned her to a location on the highway near the place where he abducted her. According to G.B.’s testimony, Gaudette had a pistol in the waistband of his trousers when she first saw him on the highway. She testified he threatened that [208]*208“he’d blow a hole in my stomach or head ... if I’d [sic] didn’t get in the car.” G.B. testified that about a week before the assault occurred, while she was walking along the same highway, Gaudette had stopped her and asked her for directions. She also testified that Gaudette stopped her a day or so later to thank her for giving him the earlier aid.

On March 18,1984, Dan Norton, a hypnotist, interviewed G.B. at the request of law enforcement officers. Norton testified at trial that the main objective of the hypnosis session was to aid the victim in her recall of the vehicle and its registration plate numbers and secure a more comprehensive description of her assailant. He stated that he had a pre-interview session with G.B. alone to acquaint her with the character and purposes of the hypnosis interview. Norton further testified that the interview was taped and was conducted in the presence of Deputy Sheriff Bill Ball and Debra McKee, Criminal Investigator for the Nac-ogdoches District Attorney’s Office. We have heard the tape.1 While the questions asked by Norton during the interview were audible, G.B.’s responses were not. At the time of the interview, no photograph of Gaudette was available and his identity was unknown. Norton did not testify concerning the responses made by G.B. during the hypnosis session.

On March 19, 1984, Deputy Ball conferred with Don Barlow, Chief of Police of the city of Nacogdoches, about the offenses. During the course of that conversation, Ball apparently repeated the description given by G.B. of the perpetrator of these crimes and the vehicle used, as well as a description of clothing belonging to the rapist. Coincidentally, Barlow’s mother owned and operated certain rental properties, in one of which Gaudette lived with his wife. Barlow knew Gaudette and was familiar with the vehicle owned by him. Obviously, the description given by G.B. of her assailant, his car and clothing matched Gaudette, his vehicle, and particularly a green army jacket worn by him on occasions.

On Chief Barlow’s suggestion, Investigator McKee photographed Gaudette using a telescopic lens. On March 19, G.B. was shown a picture spread of six males, including a photo of Gaudette. G.B. identified Gaudette as her attacker. On the same date a warrant was issued for Gaudette’s arrest. Barlow then went to Gaudette’s residence and asked him to run an errand which required Gaudette to drive his car toward Nacogdoches to a store to buy some electrical equipment. While on this mission, Gaudette was stopped by the police and arrested. He was taken to the Nacogdoches County Jail and placed in a one-man cell.

On March 20, 1984, at Gaudette’s request, his wife Lauren was permitted to visit him at the sheriff’s office. Following this visit, Barlow discussed the “incident” with him and Gaudette orally confessed that he had committed the offenses. He led the officers to the scenes of the abduction and sexual assault, and agreed to sign a written statement. On the next day, March 21, 1984, Gaudette signed a confession in the presence of Ball, Barlow and McKee. The record discloses that as Gau-dette described the events of March 7, McKee typed what he said. Gaudette read the statement before he signed it. The statement amounts to a confession of sexual assault and kidnapping of the victim, but does not contain any admissions that a firearm was used before, during or after the commission of the offenses.2

Gaudette attacks his conviction, claiming under his first ground of error that a fatal variance exists between the allegations in the indictments3 and the State’s proof at [209]*209trial. He argues that the proof does not establish that a deadly weapon, specifically a pistol, was used or exhibited in effectuation of the offenses. We disagree.

The testimony of the victim was clear and positive that Gaudette possessed a pistol, and that he threatened to use it on her if she failed to comply with his order to get in the car. Further, her testimony is equally clear that Gaudette had the pistol immediately before the sexual assault occurred while she was nude and bound.4 Gaudette’s argument that the evidence is insufficient to support the allegations of the indictment that a pistol was exhibited by him during the commission of the aggravated sexual assault against G.B. and that he threatened to use deadly force against her to effect the abduction of her are without merit. We conclude from our review of the evidence “in the light most favorable to the jury’s verdict,” 5 that any rational juror in this case could have found beyond a reasonable doubt all of the essential elements of aggravated sexual assault and aggravated kidnapping. The first ground is overruled.

By grounds two and six, Gaudette contends that pretrial identification procedures, specifically the hypnotic interview and the pretrial photographic line-up, were so impermissibly suggestive as to give rise to a substantial likelihood of misidentification of Gaudette by G.B. at trial, and therefore, the victim’s in-court identification of him should be suppressed. This argument is two pronged. He first contends that the in-court identification was the result of improper suggestive and leading questions and techniques employed by Dan Norton 6 during the hypnotic interview of the victim. Gaudette asserts that the record shows that G.B.’s in-court identification of him was induced solely by the suggestive and leading questions of the hypnotist and was not based on her “independent recollection” of the incident or her observation of him before, during or after the commission of the offenses.7 Gaudette does not quote specific questions from the tape. In essence, his argument is that the victim’s post-hypnosis memory regarding the identity of her assailant, as well as certain items of his clothing, specifically a belt buckle, and the “alleged use of a gun” during the course of the criminal episode, were false memories induced by hypnosis.8

In Vester v. State, 713 S.W.2d 920 (Tex.Cr.App.1986), the Court of Criminal Appeals addressed an identical ground of error.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Valmore Joseph Gaudette v. State
Court of Appeals of Texas, 2020
Melvin Jermain Johnson v. State
Court of Appeals of Texas, 2014
Yates v. State
370 S.W.3d 772 (Court of Appeals of Texas, 2012)
Terry Bolton v. State
Court of Appeals of Texas, 2003

Cite This Page — Counsel Stack

Bluebook (online)
713 S.W.2d 206, 1986 Tex. App. LEXIS 7895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaudette-v-state-texapp-1986.