Collins v. State

602 S.W.2d 537, 1980 Tex. Crim. App. LEXIS 1296

• Court: Court of Criminal Appeals of Texas
• Decided: July 16, 1980
• Docket: 58247
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

The opinion on original submission is withdrawn, but we must allude to it in order to provide the setting for this one. In his appeal from conviction for rape of a female under the age of seventeen appellant assails admission of certain testimony and contends the evidence is insufficient to show “penetration of the female sex organ by the male sex organ,”¹ an essential element of the offense. V.T.C.A. Penal Code, § 21.01(3).

On original submission a panel of the Court found evidentiary errors and, concluding that what evidence remained is insufficient to support the conviction, set it aside and ordered an acquittal. Now, after much deliberation, we modify that disposition for all agree that the testimony of Lula Mae Williams and Carol Nowlin relating statements made by the minor complainant well after the event is hearsay that was not admissible as res gestae. Indeed, implicitly in its motion for rehearing the State accepts that conclusion in each instance. Clearly the hearsay is damaging and the two errors in admitting it are reversible. We need cite only Oldham v. State, 322 S.W.2d 616 (Tex.Cr.App.1959), for supporting authority.

Given the state of the evidence as a whole, we can confidently determine that the forbidden hearsay testimony weighed heavily in jury deliberations that reached the guilty verdict. The verdict, then, is the product of reversible trial error, and in earlier times an appellate court would not examine the record to see whether enough competent evidence remained to sustain the verdict. Draper v. State, 22 Tex. 400 (1858). But even applying the more modern harmless error rule, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), what testimony the jury might properly have considered is not enough to warrant our disregarding twin violations of rules of evidence that permitted testimony “to the hurt of appellant,” Cascio v. State, 171 S.W.2d 356, 358 (Tex.Cr.App.1943). Smith v. State, 511 S.W.2d 296 (Tex.Cr.App.1974). There is a reasonable possibility that the hearsay testimony contributed to the conviction of appellant. Compare Myre v. State, 545 S.W.2d 820, 827 (Tex.Cr.App.1977) and Cunningham v. State, 500 S.W.2d 820, 824 (Tex.Cr.App.1973).

Having found error and made the determination that it is reversible, we should simply reverse the judgment of conviction and remand for a new trial if the State be so advised, without undertaking to examine appellant’s contention that the evidence is insufficient to convict. What evidence? That error-tainted evidence which the jury heard and obviously considered or that which remains after the contamination is metaphysically eliminated? The former manifestly will not do and the latter becomes an exercise in the abstract — “forming conclusions for ourselves” is the way the court put it more than 120 years ago in Draper v. State, supra.

In pursuing such a fanciful endeavor we do an injustice to the State, for necessarily it must be assumed what could well be absolutely contrary to the case: that the prosecuting attorney mustered, assembled and laid before the jury all evidence known and available to him. We torture the rights of appellant as well, for he is entitled to have his fate decided by a jury upon competent evidence under proper instructions from the trial court. For this Court to award appellant the acquittal he desires on “insufficient” evidence without assurance that the State has exhausted its resources— and this record surely does not provide it— thwarts the quite valid public concern that the guilty be punished. Yet, to affirm his conviction on spoiled evidence serves neither the criminal justice system nor the constant effort to inform its participants of errors that must be corrected.

Moreover, we lead ourselves to the edge of, if not into, a morass of attenuation. Illustrative here is extensive discussion of the circumstantial aspects of the proof.¹ Jackson v. State, 493 S.W.2d 860 (Tex.Cr.App.1973), cited approvingly by others who write in this case, was tried on the theory that the State relied on circumstantial evidence for conviction, id. at 862. The instant case was not tried on any such theory,² however, and the trial court did not instruct the jury on that basis. The record is solid ground for the footing of appellate review.

Accordingly, it is now enough for us that trial error occasioned the conviction. The State’s motion for rehearing is now overruled for reasons stated herein.

1 . The prosecutrix, a minor of tender years, testified to nothing more explicit than on a Tuesday appellant “put something between her legs;” an examining physician opined that his' physical findings, made the following Saturday, “are compatible with physical assault; ” a female relative and a juvenile division detective testified to conversations each had with the prosecutrix on the day of her medical examination in which she indicated penetration by appellant.

1 . Alas, its genesis is in the opinion of the panel of which I was a member. That neither I nor my brothers spotted the problem starkly contributes to make the point of this discourse.

2 . In argument to the jury neither side alluded to that character of evidence; on appeal in its brief the State refers us to “sufficient evidence, both direct and circumstantial.”