
No. 04-99-00653-CR
Thomas Alfred GILCREASE,
Appellant
v.
STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-0471
Honorable Raymond Angelini, Judge Presiding
Opinion by:	Phil Hardberger, Chief Justice
Sitting:	Phil Hardberger, Chief Justice
		Thomas Rickhoff, Justice
		Sarah B. Duncan, Justice
Delivered and Filed:	September 6 , 2000
AFFIRMED
	A jury found Thomas Alfred Gilcrease ("Gilcrease") guilty of aggravated kidnapping,
aggravated robbery, and aggravated sexual assault.  The jury assessed his punishment for each
conviction at life imprisonment and assessed $10,000 fines for the kidnapping and sexual assault
convictions.  In two points of error, Gilcrease asks us to consider:  1) whether the trial court erred
in overruling his objection to the State's use of "bastard" during closing argument, and 2) whether
the State intimidated Gilcrease's only witness into not testifying on his behalf.  We find no error
arising from Gilcrease's trial and affirm the trial court's judgment.
Background
	Gilcrease abducted Veneta Searcy ("Searcy") from the parking lot of a neighborhood bar.
He drove her to a shack.  He threw her against a wall and offered her to his colleagues for their sexual
fulfillment.  After she began praying, Gilcrease's colleagues declined to engage in sexual acts with
her.  Gilcrease stated, "f- - - her, I don't care," picked her up, removed most of her clothes (along
with some of her personal belongings), and brought her into a separate room. 
	For the next thirteen hours, Gilcrease tried to penetrate Searcy with his penis.  She fought
back; he retaliated.  Throughout the evening, he beat her into "white unconsciousness" with his
hands, inserted a Cima bottle into her vagina and hit it until she was numb, bit her breasts until they
bled, choked her until mucous came out of her nose, threatened to inject her with heroin to sedate
her, and prevented her from leaving the room.  Gilcrease told her that "I could take you on the south
side and I could get a hundred dollars worth of heroin for you.  And there's another group over there
who don't give a sh- -. . . .  All we're going to do is bury you . . . next to the other ten or twelve girls
that we've already got buried."  While carving into Searcy's back with her pocket knife, he stated,
"this is neat."  Gilcrease eventually overwhelmed Searcy and had sexual intercourse with her.
	Searcy escaped the following morning.  Almost naked, she ran to a nearby office building for
help.  Police later arrested Gilcrease. 
Discussion
1.  The State's Closing Argument
	In his first point of error, Searcy argues that the State's use of "bastard" during closing
argument was improper.  The State said that "Ms. Searcy was selected by this bastard over here to
be his victim."  Gilcrease objected.
	Gilcrease argues that the trial court erred in overruling his objection.  He asserts that because
no evidence existed to indicate he was born out of wedlock, the use of "bastard" was improper jury
argument.  
	The only acceptable jury arguments are those "within the areas of: (1) summation of the
evidence . . . (2) reasonable deduction from the evidence . . . (3) answer to argument of opposing
counsel . . . and (4) plea[s] for law enforcement. . . ."  Alejandro v. State, 493 S.W.2d 230, 231 (Tex.
Crim. App.1973).  Name calling and curse words, however, have no place in the administration of
justice.  Such words offend the dignity of the court.  A courtroom is not the street.  The trial court
should have sustained the objection and admonished the State's attorney.  Jurors are wise enough to
evaluate the credibility of the witnesses and the reliability of the evidence for themselves.  They are
prudent enough to be able to measure the demeanor of those who are in the court room.  They can
make conclusions about people for themselves.  They do not need counsel's illegitimate attempt to
demean the defendant.  A courtroom is a sanctuary for rational, deliberate, and careful argument.
Such language can be reversible error in the proper case.  We turn now to whether this is such a case.
	The State contends that "bastard" does not necessarily refer to a person born out of wedlock.
See The Concise Oxford Dictionary 73 (7th ed. 1982) (defining "bastard," in part, as "disliked
or unfortunate person"); Webster's Ninth New Collegiate Dictionary 134 (1991) (defining
"bastard," in part, as "an offensive or disagreeable person").  According to the State, because
Gilcrease engaged in objectively despicable activity, the use of "bastard" was proper jury argument
because it amounted to a proper and reasonable deduction from the evidence.  The State also argues
that it was a proper characterization of Gilcrease.
	Remarks that fall outside the permissible bounds of jury argument are not constitutional
errors.  See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also Martinez v.
State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).  Such remarks constitute "other errors" that fall
within Texas Rule of Appellate Procedure 44.2(b).  See Mosley, 983 S.W.2d at 259.  We must
disregard error that does not affect the accused's substantial rights.  See Tex. R. App. P. 44.2(b).  To
determine if the State's improper argument affected Gilcrease's substantial rights, we look to three
factors: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the
certainty of conviction absent the misconduct. See Mosley, 983 S.W.2d at 259 (citing United States
v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996); United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.
1994)).
	In the present case, the State labeled Gilcrease a "bastard" once.  After defense counsel's
objection was overruled, however, the State did not continue to engage in name calling.  Aside from
the misconduct, the testimony and forensic evidence are overwhelming of Gilcrease's guilt.  No
evidence exists to support Gilcrease's theory that he and Searcy engaged in consensual sex or that
she had left with Gilcrease voluntarily.  The State's behavior is not excused, but in this case, did not
cause a wrongful verdict to be rendered.
2.  Did the State Intimidate Gilcrease's Witness?	In his second point of error, Gilcrease alleges that the State intimidated his only witness into
not testifying.  Interference by the State with a defense witness's "free and unhampered choice to
testify amounts to a violation of due process."  United States v. Vavages, 151 F.3d 1185, 1188 (9th
Cir. 1998).  
	After the State rested, Gilcrease attempted to call a Florentino Adame ("Adame") to support
its theory that Gilcrease and Searcy had engaged in consensual sex.  Through his attorney, Adame
invoked his Fifth Amendment right not to testify in this case.  Gilcrease then rested.  Later, the State
and Gilcrease presented additional argument to the trial court:
	DEFENSE COUNSEL:	Today the Defense called Florentino Adame to testify.
His attorney was here and present for him.  Both he
and his attorney had agreed that he would testify to
the statement that he made last October 28, 1998, or
29th, 1998 [sic].  And essentially what he said in that
statement that he would testify to was, that he had
seen Thomas and the woman on the bed.
					"One time I saw them having sex, the other times they
were just kind of laying on the bed and talking like
lovers do.  I did not see what the woman looked like.
I never saw the woman leave."
					And shortly thereafter the State informed the attorney
for Mr. Adame that if he did testify he would likely
face charges of theft or robbery, and under those
circumstances he - - at that point he decided to invoke
his Fifth Amendment privilege and he did not testify.
	. . . .
	DEFENSE COUNSEL:	We feel like our client's due process rights were
violated and that this was the only defense witness that
was called.  This was the only defense witness that we
had.  And that he refused to testify based on fact that
the prosecutor had threatened him with filing charges
against him for theft. . . .
	THE STATE:			I just want to correct one thing.  Just to clarify, the
attorney for Florentino Adame asked me what he
could be charged with.  I said he could be charged
with possession of stolen property, because in his
voluntary statement that he gave to the police he
admitted to knowingly taking that jewelry from
somebody with the knowledge that it had been stolen
from the victim.
(emphasis added). 
	The record does not reveal proof of the State's attempt to intimidate Gilcrease's witness.  All
we have before us is argument of counsel.  The attorney for Gilcrease charged that the State
intimidated the witness.  The State responded it was simply answering the attorney's question.  The
trial judge was in the best position to consider the unsubstantiated claim by Gilcrease's counsel that
Adame felt intimidated.  Gilcrease did not introduce any evidentiary proof, at trial or in his motion
for new trial, that Adame was intimidated.  We overrule Gilcrease's second point of error.
Conclusion
 We affirm the trial court's judgment.
							Phil Hardberger, Chief Justice
PUBLISH
