Cummings v. StateCummings v. State
- Reporters:
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- Before:
- Countiss
Appellant was convicted of sexual abuse of a child,
The sworn complaint that led to the issuance of the arrest warrant, after reciting the facts of the crime, stated:
Affiant, James LaPavers, is a detective with the Amarillo Police Department and has received information from the Complainant that the defendant committed the acts as alleged above.
Appellant initially attacks the failure of the complaint to recite, for the magistrate’s evaluation, an independent basis for the conclusion of the police officer that probable cause existed for the arrest. The absence of any сorroborative evidentiary facts or circumstances, says appellant, violated the principles of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); thus, his statement was an inadmissible product of the resultant illegal arrest.
The Supreme Court has held thаt an arrest warrant issued by a magistrate must be based upon sufficient information to support an independent judgment that probable cause exists. Whitely v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Aguilar v. State, supra. Where, however, the victim or eyewitness to the offense is the direct source of the information conveyed to the magistrate via a police officer, neither facts independently corroborative of the occurrence nor the basis for the claimed reliability of the eyewitness need be recited. Willeford v. State, 625 S.W.2d 88, 91 (Tex.App.—Ft. Worth 1981, no pet.); Jones v. State, 568 S.W.2d 847, 855 (Tex.Cr.App.1978); Jackson v. State, 470 S.W.2d 201, 203 (Tex.Cr.App.1971). See also United States v. Burke, 517 F.2d 377, 380 (2nd Cir.1975); United States v. Rueda, 549 F.2d 865, 869 (2nd Cir.1977); United States v. Bell, 457 F.2d 1231, 1238 (5th Cir.1972).
In this case, the victim related details of the offense to the affiant, Detective LaFavers, upon whose oath the warrant issued. Her direct accusation, personally conveyed to the police officer and by him to the magistrate, is sufficient to support is *16 suance of an arrest warrant. Jones v. State, supra; Jackson v. State, supra.
Having resolved adversely to appellant his threshold contention under his first ground, we must now dispose of his subsidiаry contention that his confession was involuntary. Appellant’s reliance on Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1981) is misguided, because it pre-supposes the insufficiency of the affidavit supporting the arrest warrant. Our inquiry, instead, is whether the rights sеcured to appellant by the Fifth Amendment were violated.
The record reflects that appellant was arrested, pursuant to the warrant, at approximately 4:00 p.m. on March 26, 1981. Later that evening, after being given his Miranda 1 warnings by Detective LaFavers, appellant gave a statement that was partly inculpatory and partly exculpatory. He was then placed in the Amarillo city jail and, the following morning аfter again being cautioned pursuant to Miranda, he gave another statement to Detective LaFavers recanting his prior statement and admitting the deviate sexual acts with the complainant as alleged in thе felony complaint. Thereafter, he was brought before a magistrate for arraignment at approximately 1:00 p.m. the afternoon of March 27.
The evidence indicates that appellant could and probably should have been arraigned on the morning of March 27, pri- or to his giving the statement received in evidence. However, absent a showing of causal connection between the failure to takе him before a magistrate, as required by Tex.Code Crim.Pro.Ann. art. 15.17 (Vernon Supp.1982) and his confession, its validity is not affected. McDonald v. State, 681 S.W.2d 237, 239 (Tex.App.—Ft. Worth 1982, no pet.); Von Byrd v. State, 569 S.W.2d 883, 893-4 (Tex.Cr.App.1978) cert. den. 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979). Cf. Madden v. State, 630 S.W.2d 380 (Tex.App.—Amarillo 1982), aff’d, 644 S.W.2d 735 (Tex.Cr.App.1983); Green v. State, supra.
Appellant was given a Jackson v. Denno hearing 2 in which it was established that Detective LaFavers reviewed the warnings required by Miranda before taking the second confession. The trial court, after hearing that evidence, concluded that the statement was voluntary and the evidence sustains the trial court’s finding on that issue. McDonald, 631 S.W.2d at 239; English v. State, 592 S.W.2d 949, 952 (Tex.Cr.App.1980) cert. den. 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980). Appellant’s first ground of error is overruled.
By his second ground appellant challengеs the sufficiency of the evidence to establish that he sexually abused the complainant in the manner pled in the indictment. The allegation was that appellant
with the intent to arouse and gratify the sexual desire of [appellant] [did] have deviate sexual intercourse with [complainant], a person under the age of seventeen years and not the [appellant’s] spouse, by placing his penis in the mouth оf the complainant.
After reviewing all of the evidence, we are satisfied it was sufficient. First, we observe that, in his inculpatory statement, appellant described the commission of the very act alleged in thе indictment, although his language was not as elegant as that used by the draftsman of the indictment. Second, the complainant testified as follows:
“Q. O.K. Did you also touch him with your mouth?
A. Yes.
Q. And where did you touch him with your mouth?
A. Where he goes to the bathroom at.”
That testimony, says appellant, proves nothing because of altеrnative meanings of the phrase “where he goes to the bathroom at.”
Texas law recognizes that a child may lack the technical knowledge to accurately describe parts of his or her body. Where, however, the child has sufficiently
*17
communicated to the trier of fact that the contact occurred with respect to a part of the body within the definition of
That testimony and appellant’s inculpato-ry statement sufficiently established the deviate sexual intercourse alleged. White v. State, 591 S.W.2d 851, 863-4 (Tex.Cr.App.1979); Hone a v. State, 585 S.W.2d 681, 684 (Tex.Cr.App.1979). Accоrdingly, we overrule appellant’s second ground of error.
Appellant attacks, with his third ground of error, the refusal of the trial court to excise that part of his confession admitting sexual contact with a minor сhild not named in the indictment. The passage reads:
“V- J- reached over and touched my peter through my shorts. Then she whispered something over me to Tracy. I do not know what this was. [The complainant] then reachеd her hand over and touched me at the same place. She laid her hand right on top of my peter through my shorts. [The complainant] then leaned over me and whispered something to V_-J_ which I didn’t hear.”
“After this, this is when I heard a loud noise and I got up to investigate it. I found that V_J_had knocked the ashtray off the coffee table. I was still naked at this time. I knelt down beside V- J- in the chair.” “I fixed V_ J_ some supper and just as she had started to eat, the phone rang. I was in the bedroom putting on my pajama bottoms. I told her just a minute.”
Appellant argues that the portion of his statement quoted above raises the extraneous offense of indecency with a child. See
The parameters governing admissibility of other crimes committed by an accused were stated by the Court of Criminal Appeals in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Prominent among the exceptions to the general exclusiоnary rule is that evidence of extraneous offenses is admissible to show the context in which the criminal act occurred. The exception is a recognition of the fact that events do not occur in а vacuum and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so they may realistically evaluate the evidence. The court noted, however, that the probative value of the extraneous offenses must outweigh their inflammatory effect.
In the analogous case of Kestner v. State, 636 S.W.2d 232 (Tex.App.—El Paso 1982, no pet.) the El Paso Court of Appeals discussed the probative value of collaterаl crimes respecting sexual offenses involving children:
The general principle supporting introduction of extraneous offenses is particularly true in sexual abuse of children prosecutions, where the other offenses are probative of the probability that the act occurred and demonstrate the unnatural attention the defendant paid to the complaining witness. Additionally, the extraneous offensеs, if sufficiently similar in nature, may properly demonstrate a continuing scheme or course of conduct.
Kestner v. State, supra, at 233. See also McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Johnston v. State, 418 S.W.2d 522, 525-8 (Tex.Cr.App.1967).
Applying the foregoing reasoning to the ease at bar, we conclude that the trial *18 court was not required to excise the reference to V_ J_ in appellant’s statement. The contact with her was concomitant with that alleged in the indictment and its probative value outweighed any inflammatory effect. Aрpellant’s third ground of error is overruled.
By his fourth ground of error, appellant contends the trial court erroneously denied his requested jury instruction on the lesser-included offense of indecency with a child under
(a) A рerson commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child;
The gravamen of the offense under sub-section (a)(1), “sexual contact,” is defined in
Before an accused is entitled to a jury instruction on a lesser-included offense, there must have been adduced some evidence that if the accused is guilty, he is guilty only of the lesser offense. Bravo v. State, 627 S.W.2d 152, 157-8 (Tex.Cr.App.1982); Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr.App.1981). Under the record in this case, appellant was either guilty of sexual abuse of a child, as demonstrated by the State’s evidence, or he was not guilty of any wrongdoing, as he testified. There was no middle ground and he was not entitled to the charge. The fourth ground of error is overruled.
The judgment is affirmed.
Notes
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. This case was tried before the amendment to