Hines v. State

268 S.W.2d 459, 160 Tex. Crim. 284, 1954 Tex. Crim. App. LEXIS 1916

• Court: Court of Criminal Appeals of Texas
• Decided: May 5, 1954
• Docket: 26955
• Status: Published

Opinions

BELCHER, Judge.

Appellant was convicted under Art. 535d, Vernon’s Ann. P.C., for fondling a child’s sexual parts, and his punishment was assessed at five years in the penitentiary.

Barbara Lee, the prosecutrix, testified that she was nine years of age; that appellant came to her house on the morning of July 6, 1953, and worked on the sewer; that her brother left the house leaving her alone with the appellant, who began talking with her; that after she had told him about her appendix operation “he wanted to see and told me to lay on the sofa. * * * And then he took my pants down back here and he pretended he was a doctor and then after a while he looked around and we went to my father’s room and we were sitting on my father’s bed. He called me in there and I went in there and he told me to lay on the bed and he said he was going to make me feel good and then he pulled my pants down and put his hand inside and after a while he pulled down his pants and he pushed his privates against mine.”

“ * * * All right. When you talked about taking you in the bed room, where did he place his hands, Barbara ? A. Right in here.

“Q. Is that your privates you are talking about? A. Yes, sir.”

$$$$$$$$

“Q. Now, when he placed his hands there, did you have any clothes on between his hands and your privates? A. No, he had taken them down when he said he was going to make me feel good.”

Barbara said that appellant then left the house and she telephoned her mother; that appellant came back in the house and said to her “Don’t tell anything. If you do you will have to swear on God’s honor, and if you don’t the devil will get you.”

Following this admonition, according to Barbara’s testimony, appellant then “took me in the kitchen and lifted me on a chair and commenced monkeying again,” that is, he placed his hand under her shorts and on her private parts.

Barbara further said that when her mother arrived she told her what appellant had done, then her mother called the police and took her to the hospital where she was examined by a doctor.

The testimony of Mrs. Ivy Lee shows that she went to work about 8 "A.M. leaving her two children, Barbara, a girl nine years of age, and Richard, her son eleven years of age; that she arranged with a sewer company to clean out the sewer at her home that morning; that Barbara telephoned about 11:15 or 11:30 A.M. asking her to come home; that Barbara came out to the automobile when she arrived home and the appellant followed her; that she went in the house and appellant called Barbara back into the yard more than once saying he wanted to show her something.

Mrs. Lee further said that Barbara came in the house and told her what had happened; that she then called the police and took Barbara to the hospital.

Dr. Burns testified that on July 6,1953, he examined the body of Barbara Lee and found the area surrounding the vagina slightly reddened with no bleeding, but could not attribute said “reddening” to any particular cause.

Appellant, testifying in his own behalf, stated that he was 27 years of age and unmarried; that he worked for the Alamo Sewer Service; that he arrived at the Lee home about 10:40 A.M. to fix the sewer and found a young girl and boy there; that he remained there from one hour and twenty-five minutes to an hour and forty-five minutes, during which time he was in the house at different times for a total of about ten minutes; that he was there when Mrs. Lee arrived and talked with her about fixing the sewer; and that he made no effort to attract the young girl from the house as Mrs. Lee entered. Appellant denied touching or abusing the person of the young girl (Barbara) in any manner.

The jury resolved the disputed issue of fact against the appellant and we find the evidence sufficient to sustain the conviction.

Appellant, in his brief, contends that the court erred in holding that Barbara Lee, the prosecutrix, a nine-year-old girl, was competent to testify as a witness.

The child’s testimony shows that she understood that she would be punished if she did not tell the truth in ánswer to questions asked her. She intelligently related the transaction about which she was interrogated. No abuse of discretion is shown by the court in permitting her testimony. Nicholas v. State, 99 Texas Cr. R. 504, 270 S.W. 555; Rocha v. State, 148 Texas Cr. R. 237, 186 S.W. 2d 267.

Appellant complains of the testimony of the prosecutrix as to what her mother told her over the telephone about coming home. There being other testimony about the same matter in the record without objection, no error is shown.

Appellant further complains of the testimony of Mrs. Lee, the mother of the prosecutrix, relative to what she said in a telephone conversation she had with the prosecutrix because it was hearsay. The record reflects only one telephone conversation between these parties, and the conversation as to what the prosecutrix said being brought out by appellant, no error is refllected in showing what the mother said in the same conversation. Art. 728, C.C.P.

Appellant cpntends that the court erred in overruling his objections to the state’s argument to the jury, to-wit: “They went into Daddy’s room and then what took place in Daddy’s room? And I dare say from the facts in Daddy’s bed. * * * I am going to make you feel good right here in Daddy’s bed. And that he did, Gentlemen,” upon the ground that there was no testimony “that they laid down in her father’s bed, and it is highly prejudicial and was intended to influence the minds of the jury.”

We find the record replete with evidence supporting the above argument, thus no error is here reflected.

Appellant contends that the court erred in overruling his objection to the state’s argument concerning the failure of appellant to call Captain Matheney as a witness, to-wit: “Don’t you know that if they thought Captain Matheney could help them out they would have had Captain Matheney over here,” upon the ground that “it is not shown that Captain Matheney is under our power control or employment at all; the argument is improper, prejudicial and we ask the court to strike it out.”

We are unable to appraise this objection as the facts concerning the whereabouts of Captain Matheney during the trial are not shown. He did not testify. The district attorney had a right to comment on the failure of appellant to call him as a witness if he was in a position to have possession of facts pertinent to this case. No motion for a continuance based upon the absence of any witness is found in the record, and the record reflects that both sides announced ready for trial upon the call of this case. No error is here reflected. Crowley v. State, 92 Texas Cr. R. 103, 242 S.W. 472.

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the Court.