Zulpo v. State

415 S.W.2d 650, 1967 Tex. Crim. App. LEXIS 889

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 1967
• Docket: 40233
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The offense is indecent exposure to a child (Art. 535c Vernon’s Ann.P.C.); the punishment, 10 years.

Trial was before the court, a jury trial being waived. The plea was guilty.

The defendant’s brief filed in the trial court sets forth three grounds of error.

The first is that the evidence is insufficient to support a conviction in the cause.

Appellant entered into a stipulation of evidence in writing in open court expressly waiving the appearance, confrontation and cross-examination of witnesses and further consenting to the introduction of testimony by affidavits, written statements of witnesses and other documentary evidence.

In said writing in open court appellant waived his Federal and State Constitutional Right against self incrimination and, after having been sworn, upon oath judiqially confessed “to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case: That on or about the twelih (12) day of October, 1965, in Harris County, Texas, I did with lascivious intent, knowingly and intentionally expose my private parts and genital organs to Sharon _ (the child named in the indictment), the said Sharon _ being then and there a female person under the age of sixteen years.”

The transcript of the court reporter’s notes filed in the trial court and included in the record approved by the trial court reflects that, in addition to the defendant’s written waiver of jury trial and his written stipulation of guilt which he had filed with the court, the state offered as an Exhibit the written affidavit taken from the 13 year old girl complainant, and the testimony which the complainant’s companion would have given had she been present and sworn was stipulated.

The stipulated testimony of the two young school girls, as well as the judicial confession of appellant in writing in open court, left no doubt as to the guilt of the appellant of the offense charged.

The transcript of the reporter’s notes further reflects that following the stipulation as to the testimony of the girls, appellant in open court, agreed and stipulated that the factual matters set forth in his stipulation were true and correct as stated; that the matters set forth in the affidavit of the child were true and correct, and that the matters which it was stipulated that her companion would testify, if present, would be true and correct.

Appellant’s second ground of error, that the punishment assessed is excessive, is without merit.

The third ground of error is that the statute under which appellant was convicted is unconstitutional in that it attempts to make a crime out of something that should be and is an illness.

No authority is cited in support of this ground of error and we know of none.

The judgment is affirmed.