Valdez v. State

248 S.W.2d 744, 157 Tex. Crim. 363, 1952 Tex. Crim. App. LEXIS 1808

• Court: Court of Criminal Appeals of Texas
• Decided: March 26, 1952
• Docket: 25780
• Status: Published

Opinions

MORRISON, Judge.

The offense is statutory rape; the punishment, five years.

Prosecutrix testified that she was 16 years old on the day charged in the indictment; that she had known appellant since he had worked with her sister at a cleaning establishment; that she had been engaged to baby-sit by a Mrs. Boone; that Mrs. Boone returned home about midnight and told her that appellant was outside- in the car and would take her home. Prosecutrix testified that when she got in the car appellant drove several miles out in the country; stopped the car; threw her on the ground; had intercourse with her for a while until an automobile passed, at which time he put her in the car and continued with the act. She testified that the experience hurt her, that he took her home, and some time later in the same night she reported the attack to her parents. Prosecutrix testified that this was the first time she had ever had an act of intercourse, and we note that she was not cross-examined in connection therewith.

Dr. Oswalt testified that he examined prosecutrix the following morning and found that she had had an act of intercourse within the last 24 hours. The doctor testified that he found her sexual part bruised and swollen. On the question of whether, in his opinion, the prosecutrix had ever had an act of intercourse prior to the one charged, the doctor testified:

“Q. Isn’t it true, doctor, that you couldn’t tell, by an examination such as the one you performed on Paula, whether or not she had had intercourse before, or how many times? A. I can’t say that she had never had intercourse before, but she hadn’t had very many intercourses. * * *

“Q. Isn’t it true that Paula could have had intercourse before, within a recent time, before you examined her? A. I don’t know.

“Q. She could have had it, couldn’t she? A. From what I found, she had had intercourse within the last twenty-four hours.

“Q. But she could have had intercourse before that time, couldn’t she? A. Not from what I found.

“Q. Didn’t you testify awhile ago that you couldn’t be sure? A. From the examination that I made, the only conclusion I could draw was that she had had intercourse.

“Q. Yes, A. And at the particular time I examined her, she had had intercourse within the past twelve to eighteen hours. Whether she had any before that eighteen hours, I can’t say by examination because she had an injury that resulted in swelling of the parts of the hymen and labia of the vagina and I can’t say whether she had had intercourse before that or not.

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“Q. What you found, upon your examination of Paula Flores, is not usually present in a female who has had numerous acts of intercourse. Is that correct? A. That is right.

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“Q. Mr. Crumpton asked you about a good many acts of intercourse, but she could have had one or two other acts of intercourse? Is that possible? A. It is possible.”

We conclude from the above that the doctor testified that he could not say that she had never before had intercourse. This is not sufficient to raise the issue.

Appellant testified that he was 24 years old; that he had agreed to take prosecutrix home; that, instead of driving several miles into the country, as testified to by prosecutrix, he had driven to the city limits, where he turned and started making love to her. Appellant testified, “She did not say anything so I just went on. So she laid down. At that time it seemed to me like she knew, from her motions, that she knew everything about it. But we did not get out of the car as she mentioned.”

Appellant, in a brilliant brief, presents two questions for review.

First is the failure of the trial court to charge the jury in accordance with the last phrase of Article 1183 defining rape, as follows: “Provided that if she is 15 years of age or over the defendant may show in consent cases she was not of previous chaste character as a defense.” His contention is that the testimony of the appellant raised the issue of consent, and the testimony of both the appellant and Dr. Oswalt raised the issue of previous unchastity.

We do not feel that the testimony of the appellant raised the issue of unchastity. ,

Appellant next complains of jury misconduct.

The motion for new trial, which alleged jury misconduct, was sworn to by appellant.

We recently announced the rule in Vowell v. State, 156 Texas Cr. R. 493, 244 S. W. (2d) 214, where the trial court went ahead and heard evidence, even though the motion for new trial was not sworn to by a member of the jury, as was done here, and where the conduct complained of necessarily took place within the jury room, as in the case at bar, as follows:

“In the case at bar, the trial court, irrespective of the defect in the motion, proceeded to hear evidence from a number of the jurors. The motion before the court was insufficient as a pleading in that it was not supported by the requisite affidavit of a member of the jury, and, therefore, his action in overruling the same at any stage of the proceedings could not be assigned as error.”

Appellant attempted to show his inability to secure the affidafit of a juror by producing one member thereof, who testified that he had refused to talk to counsel about the case after the trial. Only three jurors were called as witnesses at the hearing. We do not feel that the testimony that one of the jurors had refused to talk to counsel would take appellant’s case out of the operation of the rule in the Vowell case, supra.

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