A jury convicted appellant, Daniel Hernandez, for indecency with a child and assessed an eight-year probated sentence. In his sole point of error, appellant challenges the sufficiency of the evidence. At issue is whether there is evidence corroborating the existence of the corpus delicti that was admitted in extrajudicial confessions. We reverse the judgment of the trial court.
The indictment, dated December 10, 1986, charges that appellant, "with intent to arouse and gratify the sexual desire of [appellant]," exposed his genitals to his daughter, who was "younger than seventeen years of age."
At trial, two written extrajudicial statements of appellant were admitted into evidence. One was taken by Department of Human Resources caseworker, Pat Martinez, accompanied by a police officer, Ray Martinez, and the other was taken by Officer Antonia Rodriguez of the Brownsville Police Department. In each appellant admits, while alone with his daughter, exposing his penis to her and placing a condom on it. The stated reason for the display was appellant's fear that his thirteen-year-old daughter would become pregnant unless she learned birth control techniques.
The victim testified that her father did not expose himself to her, but that she had told the caseworker that he had, although such was not true. She said the reason she made the complaint against her father was that he was threatening to take her and the family to El Salvador. Although the daughter identified her written, signed statement to the caseworker, the statement was not introduced into evidence. Over objection, she read a portion of it during her direct examination by the State as follows:
Q: BY MR. OLSEN: Will you please read that first line, the first sentence?
A: Out loud?
Q: Yes.
A: "My father began to touch me when we arrived here in Brownsville, Texas from El Salvador about three or four years ago."
Q: Is that true?
A: No.
Q: Can you read that?
A: Here?
Q: Yes.
A: "My father did not work this day."
Q: Go ahead.
A: "We were in my mother's bedroom. My father took out a green elastic, a condom, from his pocket."
Q: Is that true?
A: No.
Other portions of the daughter's written statement were read by her, but none are material to the issue of whether the appellant exposed himself to her.
After the appellant's motion for instructed verdict was overruled, he took the stand and denied ever displaying his penis to his daughter and disavowed his earlier statements.
Appellant asserts in his sole point of error that the evidence is insufficient to sustain the conviction. He specifically contends that the State failed to present any independent evidence that could corroborate his extrajudicial confession.
In Brown v. State, 576 S.W.2d 36, 42 (Tex.Crim.App. 1978), the Court of Criminal Appeals, sitting en banc, reversed a panel decision on motion for rehearing and, speaking unanimously, quoted Smith v. State, 363 S.W.2d 277, 279 (Tex.Crim.App. 1963), that:
It is well settled that a confession, alone, is not sufficient to support a conviction. It must be corroborated. There must be proof that the offense was committed — that is, the corpus delicti must be proved. The confession may be used to aid in proving the corpus delicti but is not alone sufficient.
The court in Brown, after quoting Smith, continued at 43: *Page 904
For example, the corpus delicti of murder is a death caused by criminal means. A confession supported by such a showing would be sufficient to sustain a conviction for murder and the showing need not be entirely independent on the confession. Self v. State, 513 S.W.2d 832 [Tex.Crim.App. 1974].
The offense here charged, indecency with a child, is defined in Tex.Penal Code Ann. § 21.11(a)(2) (Vernon Supp. 1988) to consist of the following elements: 1) exposing his anus or any part of his genitals, 2) knowing a child younger than 17 years of age and not his spouse is present, 3) with intent to arouse or gratify the sexual desire of any person.
The corpus delicti is the exposure of the genitals or anus. We must therefore review the record to see if there is any evidence apart from the extrajudicial confessions that appellant exposed his genitals to his daughter.
The State relies on the testimony of the case worker, Pat Martinez, and of the victim for corroboration of the act. The caseworker's testimony concerns what the victim told her, i.e. she asked for protection and did not want to return home because of the "sexual abuse by the father." Assumingarguendo that the unobjected-to hearsay statement is probative of its truth when the daughter herself denied the truth of the statement, we find that it does not constitute evidence that the appellant exposed his genitals to his daughter.
The other evidence relied on by the State is the portion of the daughter's statement quoted above, to the effect that appellant "took out a green elastic, a condom, from his pocket." This is insufficient to indicate the corpus delicti.
Thus, we find that there is no evidence to corroborate appellant's confessions and to establish the corpus delicti of the charged offense.
Appellant's point of error is sustained.
The judgment is REVERSED and the cause REMANDED to the trial court for entry of an ACQUITTAL.
NYE, C.J., dissents.