Pryne v. State

881 S.W.2d 593, 1994 Tex. App. LEXIS 2157, 1994 WL 460850
CourtCourt of Appeals of Texas
DecidedAugust 24, 1994
DocketNo. 09-93-057 CR
StatusPublished
Cited by4 cases

This text of 881 S.W.2d 593 (Pryne 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
Pryne v. State, 881 S.W.2d 593, 1994 Tex. App. LEXIS 2157, 1994 WL 460850 (Tex. Ct. App. 1994).

Opinion

OPINION

BROOKSHIRE, Justice.

On February 8, 1993, appellant was found guilty by a jury to the charge of aggravated sexual assault and punishment was assessed at confinement in the Institutional Division of the Texas Department of Corrections for a term of 65 years. Appellant brings five points of error to the Court.

The complaining witness, L.A.G., was a waitress at a tavern known as the Little Brown Jug located near Lamar University on Martin Luther King Boulevard in Beaumont, Jefferson County, Texas, on March 30, 1992. On March 28, 1992, while appellant, Raymond Pryne, was patronizing the tavern in question, a water cooler and certain tools were stolen from his truck. Appellant [595]*595charged L.A.6. that she knew the identity of the thief but was protecting him. L.A.G. denied any knowledge of the theft.

On the night of the offense in question, March 30, 1992, appellant again accused L.A.G. of protecting the thief and a heated argument ensued. Appellant was accompanied by Tommy McCoy although he did not enter into the argument. Even though L.A.G. was on duty that night, there were not many customers so she decided to go home about 10:30 or 11:00 o’clock. She had the bartender call a cab for her so she went outside to check on a customer who had passed out in his truck.

As she was returning to the establishment, the appellant and Tommy McCoy were coming out of the tavern and appellant approached her again about the theft of the cooler and the tools. He then grabbed her by the arm and even though she resisted and cried out, he put his arm around her neck and took her to his truck.

While McCoy drove the vehicle, the appellant threatened L.A.G. and struck her in the face with his fist, then with a tire iron. The blows knocked out several of her teeth and fractured her jaw. By that time, McCoy had driven the vehicle onto Interstate 10 in an easterly direction across the Neches River Bridge and into Orange County. He took the first exit and drove into the Rose City area where they turned onto a dirt road and stopped near an abandoned sand pit that had become a lake.

L.A.G. took the opportunity to escape but appellant captured her at the edge of the lake and took her back to the truck. McCoy pulled her onto the flat-bed portion of the truck and held her down while appellant raped her. The victim continued to make outcries and to scream but each time she would appellant would hit her with his fist in her face.

They subsequently left the scene and she was thrown from the truck. As soon as her feet touched the ground she started running along a barbed wire fence. She tripped and fell, then the appellant and McCoy put the truck into reverse and backed up toward the victim. Tommy McCoy was driving the truck. The victim was able to elude the appellant and McCoy by running into a steep ditch. McCoy and appellant then left the scene in the direction of Rose City. L.A.G. found her way to Interstate 10 and was able to stop a wrecker driver who called the Sheriffs Department for assistance. A deputy sheriff took L.A.G. to St. Elizabeth Hospital.

Appellant’s first point of error alleges error on the part of the trial court in denying appellant’s motion for mistrial based upon non-responsive, prejudicial comments of the State’s witness, Charlotte K. Parry, who testified that after the victim told her she only wanted to go home that she told the victim “she needs to consider these people or whoever, cause they could do this to someone else.”

Defense counsel objected that the answer was non-responsive. The court sustained the objection and instructed the jury to disregard the comment. The court denied the request for a mistrial. Assuming that the answer by Ms. Parry was unresponsive, we cannot say that the evidence was clearly calculated to inflame the minds of the jury and was of such a nature to prevent withdrawing the impression produced on the jury’s minds by a proper instruction by the court. Barney v. State, 698 S.W.2d 114 (Tex.Crim.App.1985).

The comment by Ms. Parry was not so prejudicial that would inflame the minds of the jury against the defendant by suggesting that he was guilty of a collateral crime or was generally a criminal. Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App.1992). Even an inadvertent reference to prior incarceration can be cured of its prejudicial effect. Nobles, 843 S.W.2d at 506. We find that the prompt instruction by the trial court to disregard Ms. Parry’s comment was sufficient to cure any error.

Appellant’s second point alleges error on the part of the trial court in permitting the State to prejudicially bolster its own witnesses. Appellant complains that the State was allowed to improperly bolster the testimony of the complaining witness, L.A.G., through testimony submitted by Detective Bill Davis [596]*596and through the testimony of Charlotte K. Parry.

Bolstering occurs when additional evidence is used to add truthfulness or greater weight to earlier, unimpeached evidence offered by that same party. Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.), cert. denied, — U.S. -, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993).

L.A.G. testified during direct examination that she identified appellant in a photographic line up after the commission of the offense. Earlier that same day she had given a written statement to the authorities. After she had given the written statement, Detective Bill Davis read it to her instead of allowing her to visually proofread the statement because her left eye was swollen shut.

During cross-examination defense counsel asked the complaining witness how she could make a photographic identification of the appellant if it was necessary for the statement to be read to her. He also asked if any suggestion (to identify appellant) had been made by one of the police officers and whether she was able to see well enough for the photographic line up. Later, the trial court permitted Detective Bill Davis to explain that even though L.A.G.’s left eye was closed shut she could still see out of her right eye well enough to make the photographic line up. We find that appellant challenged her ability to make an identification in the photographic line up and was an attempt to impeach her identification. Smith v. State, 595 S.W.2d 120 (Tex.Crim.App.1980). We find that the complainant’s identification of the appellant was challenged sufficiently enough to render Detective Davis’ testimony admissible.

Appellant contends that all of the testimony of Charlotte K. Parry, Administrative Assistant of the Rape and Suicide Crisis Center, was designed to bolster the testimony of the complainant. Prior to Ms. Parry having testified, trial counsel for appellant had cross-examined the complainant L.A.G. extensively attacking her character for truthfulness, eliciting several prior inconsistent statements of the complainant, confronting her at length about the “sexy outfits” that she wore as a cocktail waitress, accusing her of dancing with customers in a “sexy manner”, and asking questions that suggested L.A.G. did know the identity of the guilty party who had stolen appellant’s cooler and tools. L.A.G.

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Bluebook (online)
881 S.W.2d 593, 1994 Tex. App. LEXIS 2157, 1994 WL 460850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pryne-v-state-texapp-1994.