Duckworth v. State

833 S.W.2d 708, 1992 Tex. App. LEXIS 2164, 1992 WL 196614
CourtCourt of Appeals of Texas
DecidedJuly 8, 1992
DocketNo. 09-91-178 CR
StatusPublished
Cited by4 cases

This text of 833 S.W.2d 708 (Duckworth 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
Duckworth v. State, 833 S.W.2d 708, 1992 Tex. App. LEXIS 2164, 1992 WL 196614 (Tex. Ct. App. 1992).

Opinion

OPINION

BROOKSHIRE, Justice.

The grand jury presented a pleading that the Appellant had knowingly and intentionally caused the penetration of the mouth of C., a child that was younger than 14 years of age, and not the spouse of the accused, by the use of the sexual organ of the accused. The indictment also alleged that on or about the first part of August 1989, in Liberty County, the accused did then and there knowingly and intentionally cause the female sexual organ of C., a child that was younger than 14 years of age and not the spouse, to be contacted and penetrated by the sexual organ of the accused. A trial to the bench began on the above indictment. The trial was consolidated with a second cause of action for bond jumping and for failure to appear.

On February 5, 1991, following the completed trial to the bench, the Appellant was convicted of both the crime of bond jumping, failure to appear, and the second offense of aggravated sexual assault of a child. The bench assessed punishment at ten years on the bond jumping and 45 years on the aggravated sexual assault of a child. L.B. Duckworth, II, presents his brief using the name of Duckworth, II. The indictment referred to the accused as Duckworth, II. The notice of appeal was signed by Duckworth, II. The affidavit of indigency was signed the same way, that is, Duckworth, II. The order appointing counsel on appeal referred to the accused as Duckworth, II.

The Appellant presents a ground of review stating that the trial court erred in admitting evidence of certain extraneous acts by the accused in the aggravated sexual assault matter. The Appellant says the State presented evidence by way of testimony of C., the complainant, of certain extraneous sexual acts between the accused and the complainant. At arraign[710]*710ment the court asked the indicted person, “are you L.B. Duckworth, II”? The defendant answered unequivocally, “yes, sir”. This same person pleaded not guilty to the offense of aggravated sexual assault of a child. The two arraignments took place immediately, one right after the other, during the morning session of December 4, 1990.

About a month later, a second time the Appellant pleaded not guilty to the offense of aggravated sexual assault of a child. The accused correctly waived a jury in this non-capital case. A witness unequivocally identified the accused as being Lewis Bowen Duckworth, II. He was the father of the complainant. He was definitely identified in the courtroom on the trial as Mr. Duckworth, II, and the father of the complainant.

According to the narrative of events and occurrences proffered by the State, the Appellant began touching the young child in some manner offensive to the child since the child was about seven years of age. At the time of trial the child was about 14 years of age. At about the time the complainant was ten, she again started living with her mother and father. Previous to her tenth year she had been residing with grandparents. When ten years of age, the complainant testified that the accused would put his private part into the mouth of the complainant. The complainant said that this happened a lot. Apparently these events proceeded for about three years. The accused was then arrested when the complainant was 13 years of age. The complainant described the last time that these offensive touchings took place. It was in August when the child was 13 years of age.

The complainant testified that on the last offensive occasion that the Appellant put his private into her vagina and also into the complainant’s mouth. The complainant identified his “private” as the middle part of his body and about what he used to go to the bathroom. The private was in the front part of his body. According to the complainant the accused had definitely told her and threatened her that he could and would give her a certain power through his private. The power was that he could make people do things and that she could make people do things. However, once this power was imparted, it could not be stopped without death occurring to the complainant. The unambiguous testimony of the complainant demonstrates this in the record.

The wife of the Appellant testified that during a certain telephone conversation the Appellant told her that he was willing to plead guilty to sexual assault. In fact, the Appellant himself testified in this manner:

Q (By Mr. Hebert) There was testimony earlier, Mr. Duckworth, that dealt with a conversation between you and your daughter and you and your wife about a plea of guilt. Do you recall that conversation?
A Yes, sir. I recall it.
Q Was that on the telephone?
A Yes, sir, it was.
Q Did you ever admit to your wife or in your conversation indicate that you would plead guilty?
A Yes, sir, I did.

Under this record and the version and narration thereof that was presented by the State to the bench and favorably found by the bench, we conclude that the district court did not err in admitting evidence of certain alleged extraneous matters and further, that the Appellant failed to properly preserve his contentions for review. We determine from the record that the Appellant did not object in a timely and proper manner.

A late objection was made. The experienced bench found that the evidence was relevant. The trial judge’s action in admitting the evidence was a ruling that the same was relevant. Impliedly, the trial court made a determination that the probative value of the evidence tardily objected to was of importance and relevancy and that this same evidence was not outweighed and certainly not substantially outweighed by any unfair prejudice to the Appellant. Tex.R.CRIM.Evid. 403 provides that evidence may be excluded if relevant, provided further that its probative value is [711]*711substantially outweighed by the danger of unfair prejudice or confusion of the issues. The trial judge impliedly and correctly found contrary to the Appellant’s contention. In this bench trial there was no possibility of misleading the jury or needless presentation of accumulative evidence. Rule 403.

Tex.R.CRIM.Evid. 404(b) specifically provides that evidence of other crimes, wrongs or acts may be admissible for such purposes as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or absence of an accident. The prosecution had the burden to show that the accused intentionally and knowingly performed the acts charged in the indictment. The relevant evidence of other acts disproved lack of knowledge. The said evidence disproved mistake; it disproved an accidental occurrence. This same evidence showed proof of motive, opportunity, intent, preparation and plan. See and compare Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1991).

Furthermore, the ultimate issue was contested. An attack was made upon the complainant/victim’s testimony because there was a contended-for motive on the part of the young complainant to lie because the Appellant disapproved of some of the complainant’s boy friends. In fact, the testimony reveals in several places that apparently the Appellant disapproved and complained of all of the boy friends. The victim’s testimony was the primary evidence, if not the only evidence, to establish that this Appellant had sexually assaulted her.

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Cite This Page — Counsel Stack

Bluebook (online)
833 S.W.2d 708, 1992 Tex. App. LEXIS 2164, 1992 WL 196614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duckworth-v-state-texapp-1992.