Hernandez v. State

651 S.W.2d 746, 1983 Tex. Crim. App. LEXIS 1005
CourtCourt of Criminal Appeals of Texas
DecidedApril 20, 1983
Docket845-82
StatusPublished
Cited by49 cases

This text of 651 S.W.2d 746 (Hernandez v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez v. State, 651 S.W.2d 746, 1983 Tex. Crim. App. LEXIS 1005 (Tex. 1983).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of the offense of rape of a child and punishment was assessed at sixteen years confinement in the Texas Department of Corrections. The Fourth Court of Appeals in San Antonio reversed and ordered an acquittal. The State in its petition for discretionary review argues that the San Antonio Court’s reversal, based on failure to corroborate testimony of the victim, was error.

The salient facts developed at trial reveal: appellant was dating E_ G_ C_E_G_C_had an eleven year old daughter N-C_On April 28, 1978, the appellant forced N_C_ to have sexual intercourse with him. The victim’s mother E_G_C_actively participated in the unlawful act. Appellant and the victim’s mother were indicted for rape of a child. A plea bargain was reached with E_ G_ C_ and a severance was granted. In a trial before the court appellant was found guilty.

The Court of Appeals reversed appellant’s conviction holding that the State had failed to satisfy the corroboration requirements of Article 38.07, V.A.C.C.P., which provides:

“A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim.”

Our analysis of this situation begins with a determination of whether Article 38.07, supra, requires corroboration. The only evidence presented in the record suggesting that an outcry was made within six months relates to a letter which the victim wrote to her aunt. However, since this letter was not introduced into evidence and the date it was written was not established it fails to satisfy the statutory requirement.

[748]*748Absent a timely outcry our attention is directed to determination of whether or not the testimony of the victim has been corroborated. In Nemecek v. State, 621 S.W.2d 404 (Tex.Cr.App.1980) this Court adopted the standard for corroboration under Article 38.07, V.A.C.C.P.

“We perceive no reason to require stronger corroboration of the testimony of a victim of sexual assault who has not made timely outcry than of an accomplice to a crime. We therefore adopt the standard of corroboration under 38.14 and former 38.07 as the test of sufficiency of corroborating evidence under the present Article 38.07.”1

The standard is more explicitly defined in Nemecek, supra, as follows:

“Where accomplice testimony requires corroboration under Article 38.14, V.A.C. C.P., the standard for sufficiency is that the corroboration tends to connect the defendant with the offense charged. Similarly, under former Article 38.07, which required corroboration of the complainant in prosecution for seduction, the standard of corroboration explicit in the Article itself was evidence ‘tending to connect the defendant with the offense charged.’ ”

Inquiry is therefore confined to determining whether or not any evidence was presented at trial which connects the appellant with the offense charged. The only other fact witness who testified during the State’s case in chief was E_ G-C_, the victim’s mother and an accomplice as a matter of law. The victim’s mother testified:

“Q. [PROSECUTOR]: Can you tell the court in your own words what happened on that particular evening?
“A. Well, see, I was about in — at the other end of the room, and I had a bed in the living room. And, at that time, Ralph called me up there to the living room. So N-was there, and he was going to have sex with her.
“Q. Okay. What happened when you came into the room?
“A. Well, see, her feets were down; and he told me to put her feets up, so I did.
“Q. Okay. How was N_ laying at the time that you walked into the room?
“A. She was laying, just cradling in bed; that’s all.
“Q. Did she have any clothes on?
“A. No.
“Q. Where was Ralph?
“A. He was in there.
“Q. Where was Ralph in relationship to N_?
“A. Well, he was about to have ‘course with her.
“Q. He was about to have intercourse with her?
“A. Yes.
“Q. And, to your knowledge, did he have intercourse with her?
“A. Yes, he did.”
* * * * * *
“Q. Okay. After this incident happened, where Ralph had intercourse with N_, did he tell you to do anything concerning N-?
“A. Well, afterwards, yes.
“Q. What did he tell you to do?
“A. He said to get some birth control pills for her.
“Q. And why did he want you to give her birth control pills?
“A. So she wouldn’t get pregnant when she was — started her period.
(Re-Direct Examination)
“Q. Okay. E_, did he ever make you watch him have intercourse with N_ other than this first time?
“A. No.
[749]*749“Q. Do you know whether or not he did have intercourse with N_ other than this first time?
“A. Yes, he did.
“Q. Do you have any idea as to about how many occasions?
“A. Well, I could say it was more than three times.
“Q. Okay. Do you know for sure whether you were always aware of all of the times that he had intercourse with her?
“A. No, I wasn’t aware, not all the time. “Q. Okay. Now, this happened at the house — the first occasion that we talked about, this happened at the house where you were living on Mountain Street; is that correct?
“A. Yes, ma’am.”
(Re-Cross Examination)
“Q. [DEFENSE ATTORNEY]: Mrs. C-, the County Attorney asked you if you saw them do this; and you testified no. Then the next thing she asked you was did you know if she did it several other times, and you testified yes.
“A. Yes, yes, I did.
“Q. Okay. But you said you never saw them do it.
“A. She said at the first time.
“Q. So you did not see it then?
“A. At the first time, yes, I did and when it—
“Q.

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Bluebook (online)
651 S.W.2d 746, 1983 Tex. Crim. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-texcrimapp-1983.