Hernandez v. State

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.

*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“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. Then you didn’t see it?
“A. The first time, yes, I was aware of it. I saw it.
“Q. You were aware of it?
“A. I saw it.
“Q. Well, a few minutes ago, I asked you what you saw and what happened, and you told me you left the room.
“A. Yes, but that was after he — he was on top of her. That’s when I left the room.”
******
“Q. Okay. Well, my question is you did — you helped him. You held her feet.
“A. Well, I held her feets but not while he was having intercourse with her. “Q. But you also said while ago you didn’t see it.
“A. Well, how could it be possible that I didn’t see him when he was doing it there, when he ordered me to leave the room?

The testimony of E_G_C_was clearly sufficient to corroborate the earlier testimony of the victim. Assuming arguen-do that an accomplice can not factually corroborate a victim who needs corroboration, the conviction still must be affirmed.2

The accomplice witness and mother of the victim presented sufficient evidence to support a conviction. However, her participation as an accomplice requires corroboration, per Article 38.14, V.A.C.C.P.:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”
* * * * * *
“To test the sufficiency of the corroboration of the testimony of an accomplice from consideration and then examine evi*750dence of other witnesses to ascertain if there be any inculpatory evidence or evidence of an incriminating character which tends to connect the accused with the commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise it is not.” Infante v. State, 612 S.W.2d 603 (Tex.Cr.App.1981).

Since the victim’s testimony is being examined in light of Article 38.14, V.A.C.C.P., rather than Article 38.07, the six month “outcry” rule is inapplicable. Our sole inquiry then becomes whether the testimony of the victim tends to connect the [appellant] with the commission of the offense rather than whether it is sufficient to convict. At trial the victim testified:

“Q. [PROSECUTOR]: What did Ralph do after he got on top of you, N_?
“A. He — he put his private thing in mine.
“Q. Okay. Then can you tell me what else happened that night? N-did it hurt when Ralph put his private thing into you?
“A. Yes.
“Q. Did it hurt a little bit or a whole lot?
“A. A bit and — a little bit and sometimes it didn’t.
“Q. Okay. Did you bleed any that night when he did that?
“A. A little.
“Q. Okay. Now the, your mother was present when this happened; is that right?
“A. Uh-huh.
“Q. Okay. Did this happen anytime again after that first night?
“A. (Witness nods head.)
“Q. How many times?
“A. Several times.
“Q. Did you overhear Ralph tell your mother anything after this night that it happened?
“A. Yes.
“Q. What did you overhear Ralph tell your mother?
“A. It was about some birth control pills.
“Q. Okay. Can you tell the Court exactly what he said?
“A. He said that E_ and — he had told E__ about the birth control pills because E-and them were thinking for Ralph to put some sperms in me so they could give me birth control pills.”
(Cross-Examination)
“Q. You went to school. Okay. At the time — you say — tell me again what Ralph did?
“A. He put his private thing in mine.
“Q. What does that mean?
“A. That means he had sex with me.”
* * * * * *
“Q. How do you know what this was that he did to you?
“A. Because he used to — he used to tell me that it was going to be for an experiment, something like that.
“Q. When did he tell you that?
“A. When he was going to do that to me.
“Q. Well, when was that that he told you that?
“A. The day that he did that.”
* * * * * *
“Q. Okay. Did you — going back to that night that you’ve been talking about, did you bleed after he did this?
“A. Yes, a little.
“Q. Where did you bleed from?
“A. From my private stuff.
“Q. From your privates? Where is that? What part of the body?
“A. My middle part.
“Q. Whereabouts in your middle part?
“A. Inside.
“Q. Inside? Okay. And you bled there?
“A. Yes.
“Q. Okay. Now, you said Ralph did this to you several other times. Did you bleed those other times, too?
*751“A. No.
“Q. Just the first time? Just the first time?
“A. Yes.
“Q. How many other times do you think he did it to you? How many other times do you think he did it to you?
“A. Several.
“Q. Several? How many is several? Five? Six?
“A. He did it more than five.”
******
“Q. Okay. Would you tell us what it is he did to you? Can you not answer the question? Can you answer the question, N_?
“A. Yes.
“Q. Okay. Would you answer it for me, please?
“A. He put his private thing in my private thing.”
******
“Q. [DEFENSE ATTORNEY]: What exactly was it that Ralph did? You can’t answer the question?
“A. He had sex with me.”
******
“Q. What is it exactly that he did to you?
“A. He got on top of me, and he did it to me.”

Clearly the testimony of the victim established the necessary connection between the appellant and the commission of rape of a child. Under Article 38.14, V.A.C.C.P., this is all that is legally required to corroborate the testimony of an accomplice. Thus, the testimony of accomplice E_G_C_ was effectively corroborated by her victim/daughter and was sufficient to convict.

The decision of the Court of Appeals is reversed and the cause is remanded for consideration of appellant’s remaining alleged grounds of error.

TEAGUE and MILLER, JJ., concur in the result.

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. It must be emphasized that the factual situation here presented is unique and does not amount to cross-corroboration. Typically E_G_C_and N_C_would both be accomplices as a matter of law. However, by virtue of long standing opinions of this Court which have remained unaffected by subsequent statutory revisions, a rape victim is not an accomplice. Soliz v. State, 163 Tex.Cr.R. 508, 293 S.W.2d 662 (Tex.Cr.App.1956); Fields v. State, 147 Tex.Cr.R. 540, 182 S.W.2d 815 (Tex.Cr.App.1944); Womack v. State, 145 Tex.Cr.R. 551, 170 S.W.2d 478 (Tex.Cr.App.1943); Ambrose v. State, 145 Tex.Cr.R. 1, 165 S.W.2d 188 (Tex.Cr.App.1942); Lucas v. State, 86 Tex.Cr.R. 439, 216 S.W. 396 (Tex.Cr.App.1920); Battles v. State, 63 Tex.Cr.R. 147, 140 S.W. 783 (Tex.Cr.App.1911); Hamilton v. State, 36 Tex.Cr.R. 372, 37 S.W. 431 (Tex.Cr.App.1896).