Mills v. State

736 S.W.2d 940
CourtCourt of Appeals of Texas
DecidedSeptember 9, 1987
DocketNos. 04-85-00494-CR, 04-85-00495-CR
StatusPublished

This text of 736 S.W.2d 940 (Mills 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
Mills v. State, 736 S.W.2d 940 (Tex. Ct. App. 1987).

Opinion

OPINION

CHAPA, Justice.

Appellant, William Mills, was convicted in two separate causes: 1) aggravated sexual assault, and 2) indecency with a child. The complainant in both causes was his daughter, Jane Clara Mills. Appellant plead guilty to both counts.

The issues before us are:

1. Whether the aggravated sexual assault indictment was fatally defective;

2. Whether the proper statement of the complainant actually came into evidence for the jury to see;

3. Whether a change of venue was appropriate;

4. Whether no evidence was presented to support the aggravated sexual assault charge;

5. Whether the charge was fatally defective as to the indecency with a child; and

6. Whether the charge was fatally defective as to the aggravated sexual assault. The judgment is affirmed.

Where no objection is made to the sufficiency of an indictment prior to trial, only jurisdictional defects may be considered. Dennis v. State, 647 S.W.2d 275, 278 (Tex.Crim.App.1983). A jurisdictional defect is one which renders the indictment insufficient in that it fails to allege the elements of the offense. Russell v. State, 665 S.W.2d 771, 777 (Tex.Crim.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984) Dennis, 647 S.W.2d at 278-79. As a general rule, an indictment that tracks the language of the statute is sufficient to allege an offense and give notice to the accused of the charge against him. Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981).

TEX.PENAL CODE ANN. § 22.011 and § 22.021 (Vernon Supp.1987) provide:

§ 22.011. Sexual Assault
(a) A person commits an offense if the person:
* * * * * *
(2) intentionally or knowingly:
(B) causes the penetration of the mouth of a child by the sexual organ of the actor; or....
******
[942]*942§ 22.021. Aggravated Sexual Assault
(a) A person commits an offense if the person commits sexual assault as defined in Section 22.011 of this code and:
* * * * * *
(5) the victim is younger than 14 years of age.
* * * * * *

The indictment before us reads as follows:

... that William Mills, on or about the 17th day of December, A.D. 1984 and before the presentment of this indictment, in said court and state, did then and there intentionally and knowingly sexually assault Jane Clara Mills by causing his sexual organ to penetrate the mouth of Jane Clara Mills, a child and the said Jane Clara Mills was then and there younger than 14 years of age.

Appellant insists the indictment is fatally defective because it fails to allege that the complainant is not the wife of the appellant. We disagree.

The record reflects that no objection was made to the indictment before the trial, and so only jurisdictional defects may be considered by the court. Dennis, 647 S.W.2d at 278. The indictment herein tracks the statute and is sufficient to allege the offense and properly notify the accused. Thomas, 621 S.W.2d at 161. The complainant, being the daughter of the appellant, could not be his wife. Wicker v. State, 696 S.W.2d 680, 682 (Tex.App. — Dallas 1985, pet. granted). Appellant cannot reasonably complain of insufficient notice since he certainly knew the complainant was his daughter and not his wife, and no effort was made before the trial to quash the indictment. Further, the appellant plead guilty and we find beyond a reasonable doubt that even if a defect existed in the indictment, it made no contribution to the conviction or to the punishment. TEX.R. APP.P. 81. The complaint is rejected.

Appellant originally contended that the wrong copy of complainant’s statement was presented to the jury. During trial, by stipulation, State’s Exhibits IS (SX-1A), a copy of complainant’s statement with deletions, was admitted into evidence. However, appellant contended that actually State’s Exhibit 1 (SX-1), a copy of complainant’s statement without deletions, was received in its place. Because the record was unclear, this Court ordered this issue remanded to the trial court for resolution.

After a hearing, the trial court found that SX-1A was correctly presented to the jury. Now, appellant alleges insufficiency of the evidence at the rehearing to support the trial court’s findings. We disagree.

In a hearing before the court, the trial judge is the sole judge of the credibility of the witness and the weight to be given their testimony, and may accept or reject any or all of the testimony adduced during the hearing. Wright v. State, 603 S.W.2d 838, 840 (Tex.Crim.App.1980). Where the sufficiency of the evidence supporting a conviction is challenged, the evidence is viewed in the light most favorable to the court's judgment. Denison v. State, 651 S.W.2d 754, 758 (Tex.Crim.App.1983). Because sufficiency of the evidence is a question of law, the court’s findings will be upheld if there is any evidence in the record to support them. Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982).

During the rehearing, Mr. Ronald L. Sutton, the district attorney who represented the state during the trial of these causes, testified that SX-1A was correctly received in evidence and presented to the jury, and that SX-1 was put in the court’s jacket and was not permitted to be seen by the jury; District Judge V. Murray Jordan, who presided on these causes, testified that his recollection was that SX-1A was correctly received in evidence, and that he was careful to see that only exhibits properly received went with the jury into deliberation; and Linton Tomlin Sutton, the court reporter during the trial, testified she had caused the confusion in the appellate record by erroneously writing in an “A” in [943]*943SX-l and including it in the appellate record. Thus, viewing the evidence of the rehearing in the most favorable light to the trial court’s findings, we hold that the record supports the finding. The complaint is rejected.

Appellant next contends a change of venue was required for him to receive a fair and impartial trial. Because the record fails to reflect any request for a change of venue by the appellant in the proceedings below, the complaint is that the court should have ordered a change of venue on its own motion. TEX.CODE CRIM.PROC. ANN. art. 31.01 (Vernon 1981).

The trial court has broad power in a decision regarding change of venue, and the standard of review is a clear showing of an abuse of discretion. Cook v. State, 667 S.W.2d 520 (Tex.Crim.App.1984).

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Dickey v. State
693 S.W.2d 386 (Court of Criminal Appeals of Texas, 1984)
Dennis v. State
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Freeman v. State
556 S.W.2d 287 (Court of Criminal Appeals of Texas, 1977)
Thomas v. State
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Morris v. State
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