Bryant v. State

685 S.W.2d 472, 1985 Tex. App. LEXIS 6245
CourtCourt of Appeals of Texas
DecidedFebruary 21, 1985
Docket2-84-252-CR
StatusPublished
Cited by38 cases

This text of 685 S.W.2d 472 (Bryant 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
Bryant v. State, 685 S.W.2d 472, 1985 Tex. App. LEXIS 6245 (Tex. Ct. App. 1985).

Opinion

OPINION

HILL, Justice.

Appellant was found guilty by a jury of indecency with a child in violation of TEX. PENAL CODE ANN. sec. 21.11 (Vernon Supp.1985). The jury assessed punishment at five (5) years confinement in the Texas Department of Corrections. Four grounds of error are raised.

We affirm.

Appellant first complains of the trial court’s refusal to grant him permission to take the depositions of the prosecu-trix, K.C., and her mother. A trial court is authorized under TEX.CODE CRIM.PROC. ANN. art. 39.02 (Vernon 1979) to permit a defendant to take depositions upon a showing of good cause. Martin v. State, 422 S.W.2d 731, 732 (Tex.Crim.App.1967). The determination of whether a good reason exists for the taking of such depositions is based on facts made known to the court at a hearing for that purpose. Yaw v. State, 632 S.W.2d 768, 769 (Tex.App.—Fort Worth 1982, pet. ref’d). The court, in its judgment, then grants or denies the application on the basis of the facts presented. Id. Accordingly, the trial court has wide discretion in either granting or denying an application for depositions. James v. State, 546 S.W.2d 306, 309 (Tex.Crim.App.1977); Beard v. State, 481 S.W.2d 875, 876 (Tex.Crim.App.1972). It therefore follows that a reviewing court will not find that a trial court has abused its discretion in declining to permit depositions to be taken absent a showing of injury as a result of such denial. James v. State, 563 S.W.2d 599, 602-03 (Tex.Crim.App.1978); Beshears v. State, 461 S.W.2d 122, 126 (Tex.Crim.App.1970).

The record does not reveal an affidavit stating facts necessary to constitute a good reason for taking K.C. and her mother’s depositions. Thus appellant has failed to follow all the required statutory procedures and it was not an abuse of discretion for the trial court to refuse him permission to take the aforementioned depositions. See Martin, 422 S.W.2d at 732-33; art. 39.02.

Moreover, appellant has not shown he was injured by the trial court’s refusal. See Gonzalez v. State, 647 S.W.2d 369, 373 (Tex.App.—Corpus Christi 1983, pet ref’d). Both K.C. and her mother testified at trial and were thoroughly cross-examined. In situations such as this where the witnesses are subject to cross-examination, courts have held no injury results from a trial court’s refusal to permit a defendant to *474 take their depositions. McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App.1973); Boyd v. State, 633 S.W.2d 578, 582 (Tex.App.—Texarkana), aff' d, 643 S.W.2d 708 (Tex.Crim.App.1982). We overrule appellant’s first ground of error.

In three separate grounds of error, appellant challenges the sufficiency of the evidence to support the jury verdict. We are required to view the evidence in the light most favorable to the verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983).

A factual summary of the evidence adduced at trial reveals that on April 16, 1984, K.C., who was then five (5) years old, was turning cartwheels in her yard. Appellant was repairing a neighbor’s garage door. The child wandered over and began talking to appellant. Appellant then offered to give the girl a piggyback ride. While the girl was on appellant’s back, she claimed he put his hands underneath her underpants and touched her “down between [her] legs.”

By his second ground of error appellant contends there was insufficient evidence to show he touched the child’s vagina as alleged in the indictment. Having particularly alleged “the vagina,” the State must prove a touching of the vagina. Lujan v. State, 626 S.W.2d 854, 858 (Tex.App.—San Antonio 1981, pet. ref’d).

“Vagina” has been defined as the canal in the female extending from the uterus to the external parts of the female genital organs. BLAKISTON’S GOULD MEDICAL DICTIONARY 1439 (4th ed. 1979). The sufficiency of the evidence required to prove that a defendant touched the vagina of a child in an indecency with a child case has been previously considered by Texas courts. See Tyra v. State, 534 S.W.2d 695, 696-97 (Tex.Crim.App.1976) (prosecution under predecessor statute to TEX.PENAL CODE ANN. sec. 21.11); Lujan, 626 S.W.2d at 857-59. In examining the testimony of the children involved, courts have kept in mind a child’s lack of technical knowledge in accurately describing the parts of his body. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977).

In Tyra, the Court of Criminal Appeals held the testimony of the prosecutrix was sufficient to support the allegation that appellant “placed his hand ‘against’ [her] vagina.” Tyra, 534 S.W.2d at 697. In that case the nine (9) year old prosecutrix testified as follows:

A He put his hand between my legs.
Q Did he place his hand against your vagina?
A Yes.

She further testified:

A He put his hand where my vagina is.
Q All right. When you say vagina, what do you mean by that?
A Where I use the rest room.
Q Okay. You mean the whole area around there, don’t you, isn’t that what you mean, the whole area between your legs?
A Yes.
Q So you are saying that maybe he touched the whole area between your legs, is that what your testimony is?
A. Yes.

Id. at 696.

In the present case, K.C.

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

Related

Sergio Gonzalez v. State
Court of Appeals of Texas, 2018
Smith, Skie Jordan
Court of Appeals of Texas, 2015
Skie Jordan Smith v. State
459 S.W.3d 707 (Court of Appeals of Texas, 2015)
Richard Nieto Trevino v. State
440 S.W.3d 722 (Court of Appeals of Texas, 2013)
Charles Franklin Woodruff v. State
Court of Appeals of Texas, 2012
Julian Maldonado v. State
Court of Appeals of Texas, 2010
Victor Mendoza v. State of Texas
Court of Appeals of Texas, 2010
Allan Santiago Smith v. State
Court of Appeals of Texas, 2008
Michael L. Scott v. State
Court of Appeals of Texas, 2006
Scott v. State
202 S.W.3d 405 (Court of Appeals of Texas, 2006)
Steven Jones v. State
Court of Appeals of Texas, 2006
Jones v. State
184 S.W.3d 915 (Court of Appeals of Texas, 2006)
Chafin v. State
95 S.W.3d 549 (Court of Appeals of Texas, 2003)
Dennis Drew Chafin v. State
Court of Appeals of Texas, 2002
Breckenridge v. State
40 S.W.3d 118 (Court of Appeals of Texas, 2001)
Wallace v. State
52 S.W.3d 231 (Court of Appeals of Texas, 2001)
Julio Guia, Jr. v. State
Court of Appeals of Texas, 2000
Lucio Rodriguez v. State
Court of Appeals of Texas, 1998

Cite This Page — Counsel Stack

Bluebook (online)
685 S.W.2d 472, 1985 Tex. App. LEXIS 6245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-state-texapp-1985.