*1 746 petition discretionary In his for Marshall Curry, Atty.,
Tim Dist. C. Chris review, Hase, Attys., Appellant urges Fort further that and Don Asst. Dist. Worth, Huttash, reindicted, paragraphs Atty. Robert enhancement State’s he was Austin, Walker, Atty., Alfred Asst. State’s in retaliation to the indictment added for previ the State. been quash for a motion to which had rejected Appeals of
ously filed. Court there was noting that this contention enhancement counts “no evidence that OPINION Appellant’s were added in retaliation PER CURIAM. We find that the Court quash.” motion to Appel that concluded Appeals properly of Appeal is taken from a conviction of such al present evidence lant failed to Punishment, en burglary building. of a However, we call the leged retaliation. convictions, was prior felony hanced two allega fact that Court’s attention Appeals of af assessed at life. The Court not consti prior convictions do tions as to Phillips v. Appellant’s firmed conviction. Ha See State, in an indictment. (Tex.App. tute “counts” 639 501 S.W.2d — Ft. State, (Tex.Cr.App v. 826 thorne Worth, rehearing was 459 S.W.2d 1982). No motion for State, (Tex. 725 .1970); Beck v. 420 S.W.2d filed. Cr.App.1967). review, discretionary petition In his 'for Nonetheless, that the Court erred that the Court of Appellant urges we find motion to set aside the failing grant his result in af- proper reached the Appeals Therefore, of a violation of the indictment on the basis conviction. firming Appellant’s 32A.02, Trial Act. Art. V.A.C.C.P. Speedy discretionary re- petition for Appellant’s contention, of rejecting In this Court refused. view is Appeals part: stated day the 12th of IT IS SO ORDERED justified by delay “... in trial 1983. January, of exceptional circumstance of Court panel decision Thom- Appeals Criminal
as, interlocutory im- which had an offense of on indictments for the
pact justified building. Delays of a
burglary circumstances are exclud-
by exceptional of time limitations
ed from the Trial Act.”
Speedy reject we the conclusion Initially, HERNANDEZ, Appellant, panel Appeals Court v. State, v. in Thomas opinion by Court Texas, Appellee. The STATE consti (Tex.Cr.App.1981), 621 158 S.W.2d circumstance.” Such “exceptional tuted an 845-82. No. part never was never final and Ko Texas, jurisprudence Appeals of this State. See of Criminal Court State, (Tex.Cr. murke v. Banc. S.W.2d En Further, the Court App.1978). 20, 1983. April “delay in trial.” considering erred in 8, June Rehearing Denied delay prosecutorial addresses itself to Act whole. as a judicial process rather than the (Tex.Cr.
Barfield 586 S.W.2d make it man The Act does not
App.1979). within the al that a case be tried
datory State, Ostoja v. of time. period
lowed (Tex.Cr. App.1982). *2 at sixteen in the years
sessed confinement Department Texas Corrections. The Fourth Court of Antonio San acquittal. reversed and ordered an The discretionary petition in its review State rever- argues that the San Antonio Court’s sal, testimo- based failure corroborate victim, error. ny of was developed The salient facts at trial re- E_ G_ appellant dating veal: was C_E_G_C_had eleven N-C_On year daughter April old N_C_ forced appellant sexual The to have intercourse with him. E_G_C_actively victim’s mother Appellant participated the unlawful act. and the victim’s mother were indicted for A rape plea bargain a child. was E_ G_ C_ with and a reached granted. severance was In a trial before appellant guilty. the court was found Court of Appeals appellant’s reversed holding conviction that the failed State had satisfy requirements corroboration 38.07, V.A.C.C.P., which provides: Chapter “A conviction under Penal Code, supportable on the uncorroborat- testimony ed of the victim of the sexual offense if the any per- victim informed son, defendant, than the alleged offense within six months after alleged the date on which the offense is have in- occurred. court shall jury lapsed struct the that the time which time alleged between offense and the reported it was shall considered assessing the jury purpose for the given testimony to be weight Klingemann, Seguin, Bill J. for appellant. the victim.” Huttash, Atty. Robert and Alfred State’s analysis of situation with begins Our Walker, Atty., Austin, Asst. State’s whether determination of State. requires only ev- corroboration. The suggesting idence record within months outcry that an was made six OPINION ON FOR STATE’S PETITION to a letter which the victim wrote relates DISCRETIONARY REVIEW However, since this was her aunt. letter CAMPBELL, Judge. date it not introduced into evidence and the not established fails to Appellant was of was written convicted offense punishment requirement. of a child and was as- satisfy statutory “Q. Okay. happened Absent a our attention is What timely outcry directed of whether or not to determination came into the room? of the victim has been corrob- see, down; Well, her feets were State, 621 orated. In Nemecek v. put he told me to her feets so I up, adopted
404 (Tex.Cr.App.1980) this Court did. the standard for corroboration under Arti- N_ “Q. Okay. laying How at *3 cle V.A.C.C.P. you the time that walked into perceive require “We no reason to room? corroboration of the stronger of a victim of not sexual assault who has bed; just cradling in laying, “A. She was timely outcry made than of an that’s all. to a crime. adopt We therefore stan- “Q. any have clothes on? Did she dard of corroboration under 38.14 and “A. No. sufficiency 38.07 as test of corroborating present evidence under the “Q. Ralph? Where was Article 38.07.”1 “A. He was in there. explicitly The standard is more defined in “Q. Ralph relationship to Where was Nemecek, as follows: N_? accomplice testimony requires “Where Well, to have ‘course “A. he was about 38.14, V.A.C. corroboration under Article with her. C.P., is that sufficiency the standard for the corroboration tends to connect “Q. He was about to have intercourse charged. defendant with the offense with her? under former Article Similarly, “A. Yes. required corroboration of the com- “Q. And, knowledge, did he your seduction,
plainant prosecution with her? have intercourse explicit standard of corroboration in the Article itself connect charged.’ the defendant with the offense ” evidence ‘tending “A. [*] Yes, [*] he did.” [*] [*] [*] [*] “Q. hap- this incident Okay. After Inquiry is therefore confined to determin- Ralph had intercourse pened, where ing any whether or not evidence N_, did he tell to do you with trial appel- at which connects concerning N-? anything charged. lant with the offense during other fact witness who testified Well, afterwards, yes. “A. E_ case in chief was G- State’s “Q. you What did he tell to do? C_, accom- the victim’s mother and an get some birth control “A. He said to plice as a matter of law. The victim’s for her. pills mother testified: give want “Q. why you And did he “Q. you tell the Can [PROSECUTOR]: hap- pills? own words what her birth control your court pened particular evening? on that get pregnant wouldn’t “A. So she Well, see, I was about in —at “A. period. her she was—started room, other end of the and I had a Examination) (Re-Direct And, living bed in the room. at E_, you he ever make “Q. did Okay. time, me up called there with him have intercourse watch N_ living room. So N-was than this first time? other there, going and he was to have sex
with her.
“A. No.
throughout by
emphasis
supplied
All
cated.
otherwise indi
writer of this
unless
“Q. Well,
“Q.
you
ago,
Do
know whether or not he did
a few minutes
I asked
N_
hap-
saw and what
you
you
have intercourse with
what
pened,
you
you
told me
left the
than this first time?
“Q.
“A.
(Re-Cross Examination)
“A.
“Q.
“Q.
“A.
“Q.
“A.
“Q. Okay.
“A.
you testified no. Then the next
you
know if she did it several other
thing she asked you
times,
Okay.
talked
house —the first occasion that we
house where
Mountain
all of the times that he
whether
Yes, yes,
course with her?
[DEFENSE ATTORNEY]:
C-,
how
Okay.
Yes,
Do
No,
Yes,
three times.
Well,
you
I wasn’t
if
many
he did.
ma’am.”
I could
about,
you
the County Attorney asked
But
Now,
have
Do
I did.
Street;
you
occasions?
saw them do
you
aware,
you
say
this
this
you
testified
said
it was
idea as
happened
happened
always
know for
is that correct?
not all the time.
you
was did
yes.
more
never saw tion,
had
this;
living
aware of
at the
at the
about
inter-
than
Mrs.
sure
you
on
tion as an
port a conviction.
victim
tion, the conviction still must be affirmed.2
clearly sufficient
corroborate a victim who needs corrobora-
do that an
testimony
“A.
“Q.
“Q.
“A.
per Article
[******]
accomplice
testimony
presented
didn’t see it.
feet.
But
room.
did—
the room?
there, when he ordered me to leave
he was
Well,
Okay.
didn’t see him when he was
Well,
the room.”
Yes, but that was after he—he was
of the victim.
top
accomplice requires
you helped
you
accomplice
how
I held her feets but not while
*4
having
of her. That’s when I left
Well,
sufficient evidence to
witness and mother of the
also said while
could it
However,
E_G_C_was
corroborate the
my question
intercourse with her.
V.A.C.C.P.:
him.
can not
Assuming arguen-
be
possible
her
You held her
corrobora-
participa-
factually
ago you
doing
earlier
that I
sup-
you
them do it.
upon
“A conviction cannot be had
accomplice unless corrob-
testimony of an
“A.
said at the
She
first time.
“Q.
“A. At the first
“A. The first
“Q. Then
“Q. You were aware of it?
when it—
it.
So
you
I
you
saw it.
did
time, yes,
didn’t see
not see it then?
time, yes,
I was aware of
it?
I did and
ration of the
of the offense.”
nect the defendant
mitted; and the corroboration is not suf-
orated
ficient
“To test the
[*]
if it
by
[*]
other evidence
merely
testimony
sufficiency
[*]
shows
with the offense com-
[*]
of an
tending to con-
the commission
[*]
corrobo-
[*]
“A.
I
and then examine evi-
saw it.
from consideration
State,
540,
emphasized
182
815
It must be
that the factual situa
v.
147 Tex.Cr.R.
State,
1944);
unique
(Tex.Cr.App.
v.
145 Tex.
tion here
is
and does not
Womack
551,
(Tex.Cr.App.1943);
Typically
478
amount
E_G_C_and
cross-corroboration.
170 S.W.2d
Cr.R.
N_C_would
1,
State,
both
165 S.W.2d
Ambrose
145 Tex.Cr.R.
State,
1942);
accomplices
(Tex. Cr.App.
be
Tex.
as a matter of law.
Lucas v.
long standing opinions
439,
(Tex.Cr.App.1920);
virtue of
216 S.W.
Cr.R.
State,
Court which have remained unaffected
sub
dence
evidence or evi-
inculpatory
there
pills.
incriminating
dence of an
character
“Q.
you tell the Court ex-
Okay. Can
tends
with
to connect
accused
he said?
what
actly
the offense.
If there
the commission of
E_
had
“A. He said that
and —he
evidence,
such
corroboration is suf-
is
E__
about
birth control
told
ficient,
is not.”
Infante v.
otherwise it
them were
because E-and
pills
(Tex.Cr.App.1981).
vict. the victim “Q. Okay. “Q. “A. “Q. Okay. “Q. Did it “A. He —he “A. Yes. “Q. “A. Uh-huh. “A. “Q. “A. “A. “Q. right? present when did vate when he did that? Okay. again after that do A How lot? else happened N_? [PROSECUTOR]: Okay. Then times it didn’t. A bit (Witness mine. Several little. thing many hurt when and —a little hurt a Did Now times. Did this put nods he into you times? the, this can his got head.) little bit or a whole that bleed you? first Ralph put happened; you your private thing in happen What did night? bit night? tell me what top mother was that anytime his N- some- night that you, pri- “Q. “A. From “A. My middle “A. “Q. “A. “Q. “Q. “Q. “Q. “A. “Q. Well, “A. Because “A. That means * [*] night you that? this? about, Whereabouts that Okay. When Where From experiment, Yes, How do When me. me that that? day he did to * [*] a little. my private did he What he your that did did Did he used to—he used that he did that.” it was you part. [*] * you you going something like was that part of the he you’ve tell privates? know what *5 you? going — bleed bleed after going had your you stuff. [*] * sex with me.” from? that? to do that been middle that he to be for an back * [*] body? Where that. talking to that he did to tell part? [*] * told “A. Inside. “Q. you Ralph your Did tell overhear bled there? “Q. Okay. you And Inside? night mother anything that it happened? “A. Yes.
“A. Yes. Now, Ralph did “Q. you said Okay. you Did other times. several you tell “Q. Ralph What overhear you did times, other too? those bleed your mother? “A. No. OPINION CONCURRING IN THE JUDGMENT OF THE “Q. COURT Just the first time? Just the first time? CLINTON, Judge. “A. Yes. petition for discretionary review
“Q. How many other times do you think received from our Prosecuting State Attor he did it to you? How many other you ney presented review; times do think three grounds he did it to you? though granted restriction, it was without “A. Several. of the Court fails to address a “Q. Several? How many is several? threshold issue raised in the ap court of Five? Six? peals by the State and now reiterated as its “A. He did it more than five.” ground review, first viz: ****** “(1) The Court of erred in “Q. Okay. you Would tell us what it is holding victim, who, that a minor as a he did to you? you Can not answer law, matter of can neither prosecuted the question? you Can answer the N_? question, for nor consent to the sexual offense charged, must be corroborated under Art. “A. Yes. Ann.C.C.P., Vernon’s if the victim “Q. Okay. me, Would answer it for report did not the crime to some person, please? defendant, than the within six put He his private thing my pri- months of the offense.”1 vate thing.” [******] Convinced that resolution of that issue will clarify the application of Article su- “Q. What [DEFENSE ATTORNEY]: pra, dispose and then questions of all other exactly was it did? You can’t cause, answer the question? in this I propose to draw extensively from the petition to demonstrate that “A. He had sex with me.” lished the necessary connection between the appellant “Q. What Clearly the testimony of the victim estab- [******] you? to me.” He and got is it exactly that he did to the on top of commission me, and he did it of rape of a testimony must be corroborated. one reason or “accomplice ny p. Criminal Procedure by 1975, was meant to deal only with testimo- addition of Article 38.07 to the Code of 476, of a victim of a sexual offense ch. 203, witness” another, § 6, effective and, Acts was held to be an perforce, whose *6 1973, September 64th who, Leg., 1, 38.14, 1, 1974, child. V.A.C.C.P., 38.07, Under Article Prior to January Article is all legally that is required to corroborate V.A.C.C.P., provided: the testimony accomplice. Thus, of an the prosecutions “In all for seduction the fe- E_G_C_ testimony of accomplice alleged male to have been seduced shall was effectively by corroborated her vic- permitted testify; but no conviction tim/daughter and was sufficient to convict. upon shall be had her testimony unless The decision of the Court of is the by same is corroborated other evi- reversed and the cause is remanded for tending dence to connect the defendant appellant’s consideration of remaining al- charged.” with the offense leged grounds of error. reversing In its opinion present the convic- tion, majority appeals a of the court of MILLER, JJ.,
TEAGUE and concur in the (hereafter result. majority”) “the states: “Prior to State; Emphasis opinion 1. was added the all other of this unless otherwise indicated. emphasis supplied throughout by the writer 1975, in Legislature its amendment the based premise on the mistaken 38.07, of supra, Article the Legislature addressed the merely had “amended” majority fense of seduction.” The then the of requirement seduction-corroboration ex says: Legislature “In the 64th 38.07, Article majority the came to tended cor requirement [Article 38.07’s] Legisla- the effective conclusion that the for corrob necessity roboration to a include had made it obtain ture more difficult victims of all orating testimony the of [all] convictions in sexual offense cases. That Chapter sexual offenses Penal under misapprehends very purpose conclusion the Code, regard to without [footnote omitted] and effect the Act. age, except the victim’s in those cases part Article was a of H.B. Present 38.07 outcry where an is made within six months Regular No. 284 of 64th Session after the date on the offense is al which of H.B. Legislature.3 purpose whole Hernandez v. leged to have occurred.” No. 284 was to make it less difficult (Tex.App.1982 at convictions in sexual offense cases. obtain Antonio). majority’s —San The rest of the Analysis” The “Bill for the House prepared hinges upon that the proposition Jurisprudence Committee Criminal 38.07, Legislature supra, Article “amended” states, In- heading “Background under the in With that majority 1975.2 premise, the formation,” as follows: totally mistaken. asso- problem “It is felt that much of the 1, 1974, Penal January On the 1925 Code the reporting prosecution ciated with and was 1973 Penal Code be repealed dis- rape present is that statutes came effective. In the 1925 Pe repealing reporting be- courage prosecution Code, 505-509, which nal former Articles victim and cause of embarrassment “seduction,” were with the dealt offense of difficulty obtaining a conviction.” statute specifically expunged from the Penal books of this State. 4 V.T.C.A. See present Prior to enactment of Code, Penal pp. 392-393. The 1973 Code had the victim this Court held that the former contained no law prohibiting was al- where a a case nonconsent Therefore, on and offense of seduction. consent, age leged, who over the 1, 1974, offense January there was no effect, could, witness” “accomplice be an law. prohibited by Texas “seduction” testimony was to be corrob- required whose Thus, age of a woman over the orated. Moreover, Legislature at time the raped, consent, who that she was claimed Code, specif- it also repealed the Penal to be if consent required corroborated ically repealed issue and woman failed were an victim in that the required the out- outcry promptly report or make an “seduction” case be corroborated. See expla- there unless was a reasonable rage, Code, Consequently, Penal p. Y.T.C.A. *7 cor- such the nation for failure. 1974, a 1, and for January on and after (1) consent apply rule did if: 1, roboration not months, September 20 until period up of legally or was not in issue the victim 38.07 was 1975, an new Article entirely when (2) the victim 479, consenting; of 1975, p. incapable Leg., 64th by was enacted Acts report of the outcry prompt an or a 203, 6, 38.07 at made there was no Article ch. § ex- (3) there was a reasonable outrage; amended. or all, less one could be much that State, any Vickery whether the panel be as to v. 566 If there doubt 2. The in was an panel present 38.07 (Tex.Cr.App.1978), version of Article 624 as did the S.W.2d case, present of that stat- an version present the “amendment” of earlier in the that assumed ute, only No. 284 of 6 of H.B. because need look to § version of Article 38.07 resulted one provides: “changes wrought by of Criminal 1975 amendment “The Code the itself which amended, But, Procedure, as shall be as is amended 566 ...” S.W.2d at 626. text, post, adding 38.07 follows: [the in the read as shown an 38.07 to repealed months present of 20 had been for a total text of Article 38.07].” became before the socalled 1975 “amendment” effective. planation outcry cases, for the failure make in to an Court some of sexual offense the report or a prompt outrage. rape of which nonconsensual is but an ex- ample, outcry where there was no or In those cases in the victim report report- but where the victim prompt witness, be “accomplice” considered to an person, ed offense the to some other than the victim was be apparently considered to defendant, the six of within months the an “accomplice” witness in the that sense say offense. To the as did the contrary, that term is used in Article V.A.C. appeals’ majority, court of is to turn a C.P., predecessors. and its But it down positively upside worded statute and cases, came to the socalled “statutory” rape Legislature. thwart the intent of the the court not justifica- could find sufficient previously The Court has held that an tion “legal” for any conclusion that the above of alleged rape age victim the con- victim an “accomplice” witness. witness, “accomplice” be sent could an but Therefore, the Court that held such victims held, times, in has not at least recent that witnesses; were “accomplice” not con- and alleged legal an of age victim under the victions could had on their uncorroborat- could “accomplice,” consent be an either as ed whether outcry prompt or re- Therefore, a of law fact. matter or since port See, were or e.g., made not. Soliz the are “accomplices,” latter victims not State, 163 Tex.Cr.R. S.W.2d they not need be corroborated under Article (1956); Johnson v. We 38.14. are to entitled attribute (Tex.Cr.App.1969). Legislature knowledge holdings of such as Consequently, applied “statutory” to determining legislative intent to override rape cases, there was nothing for No. H.B. them. remedy, 284 to so far as corroboration case, In present the the prosecutrix requirement was im- concerned. Prior law years was eleven old at of the time the posed requirement no of corroboration years offense twelve old at the time of cases; such convictions to easy enough be prosecuted rape trial. could not She obtain; and, therefore, nothing there was as an nor she be adult could certified to make “less difficult.” juvenile court for prosecution. V.T.C.A.Pe The majority of the court of appeals, Code, Moreover, nal 8.07. prosecutrix § however, has attributed an intention to among in this case was those of class vic Legislature which would make convictions statutes, tims that some like those denounc in “statutory” rape cases more difficult. ing child, of rape designed protect. are Although no such requirement existed be- Code, V.T.C.A.Penal makes victims § fore, majority says Legislature who previously engaged under 17 have not has now required corroboration in “statuto- promiscuous sexual or deviate sexual in ry” rape or of a child cases where the tercourse and those victims under re victim person, does not inform some gardless prior promiscuous sexual con defendant, than the alleged offense duct, legally giving incapable consent within six months after the date on which Thus, not they sexual intercourse. are le alleged offense to have occurred. In responsible undoing for their own gally so doing, majority has not frustrat- cannot be witnesses as a matter ed the Legislature intention to make Surely, or fact. we attribute law cannot convictions in sexual offenses less difficult Legislature protect intention to obtain; but it has also turned the statute victims, children, class such certain as *8 on its head. hand, also to that one and attribute intention make same vic body an those a quite There is difference between re- culpable persons as those criminally tims as quiring a that witness be corroborated and designed to against protection whom that eliminating requirement a of corrob- shield. sought oration. In 1975 the Legislature eliminate a former 38.07 require- corroboration Before the 1975 addition Article legislative ment about distinc- brought by decisions of held that Court persons children and older tion between State, 538
a rational one. Hohn v. S.W.2d Without com- (Tex.Cr.App.1976). Legislature indicia that the intended
pelling a distinction founded in
to obliterate such
reason, I hold that Article 38.07 em- would those instances in which the just
braces “accomplice considered an
victim has been offense, no
witness” in the sexual
more.4 I reach the same result as the
Since
Court, join judgment. I its McCORMICK, JJ., join this
ODOM
opinion. MOTION ON APPELLANT’S
OPINION LEAVE TO FILE A MOTION
FOR
FOR REHEARING
PER CURIAM. of the now majority
A Court
adopts opinion as the Court original concurring
cause the extent of Accordingly, to the
submission. State, 621 Nemecek v. any conflict is overruled. (Tex.Cr.App.1980) motion is denied.
Appellant’s DENISON, Jr., Appellant,
Patrick Texas, Appellee.
The STATE of
No. 64958. Texas, Appeals of
Court of Criminal
En Banc. 4, 1983.
May 22, 1983. June
Rehearing Denied argument strong the effect already passed makes a Indeed, State we have I believe rape is never an of a legal that the victim fiction that reexamination time for address not further I do may witness. be- somehow offenses victim of sexual a my disposition of in view perpetration matter here “accomplice witness” come State. issue Asking threshold upon “Can that victim. of the offense rape?” the of her own convicted woman be