*1 porated towns, cities and but there is authority of a conflict of between municipal-
the Railroad Commission presented
ity by judgments of the Court of Civil
Appeals and the District Court are reversed
and the cause remanded to the trial proceedings
for consistent with McFall, McFall, Chappell R. & John Lubbock, for JACKSON, Appellant, David Marvin Griffin, Atty., R. Dist. M. Alton William LauBach, Lubbock, Atty., Dist. Asst. Texas, Appellee. The STATE of Austin, Atty., for Douglas, B. State’s Leon No. 38153. the State. Appeals Court of Criminal of Texas. McDONALD,
April 14, 1965. Judge. Presiding sodomy; punishment, The offense penitentiary confinement in the state years. case consisted state’s was shown from Don years age the time of be 15 commission offense. an act oral
testified that appellant at a committed on Texas, Lubbock, about residence out “last weeks before school witness, Lees, was a student year”. The at the junior high school Mike accompanied home sodomy was com- occasion when he and arrived 11:00 A.M. 12:00 liquor from o’clock about drank into then went to 3:00 o’clock down, I was tired”. “to- a bedroom This witness room came the witness later minutes *2 936 lying appellant on the bed and fied that that he was drunk time the act
came over and bed upon sat down on the and was committed him. “I couldn’t that the of them looked at some books struggling”, have done too much he related. pornographic na- He further stated that if he wanted to ture,. appellant get thereafter fondled the he didn’t know whether he or could parts approximately not, say.” sexual of Lees for “I couldn’t Lees testified that if minutes, appellant unzipped and then he had not been drunk he would not have pants appellant Lees allowed Lees do that get up appellant appel- that tried to but that he remained that pulled him back onto the bed and lant’s house 2 around or hours 1J4 appellant, pants thereafter took off the after the act of had been commit- ted, underclothes of but himself then Lees and that he drank some more liquor. off ap- took his shoes. that appellant’s Lees testified He and left pellant then committed an act oral sod- house around 6:00 P.M. omy upon him and that after said act testimony The state also adduced from appellant was committed that he and on Jeffrey Steven Turner and Mike the bed for five minutes and having appellant’s who testified to been to Lees dressed himself and left the house and but neither room and came out of the room sometime later. Lees’ witness, Lees, as to the commission of the
that there was no force or threats exerted
alleged.
upon
before,
him either
during
gone
he had
that
Appellant’s
urge
able counsel
that
appellant’s
voluntarily
house
date
on
finding
court erred in
the act was committed and that he witness, Lees,
gone
thereafter
back to
as a matter of law. The state contends
house some nine or ten times and had in
that under the facts of this case the wit
fact
one
gone
on
occasion
in a bedroom and
ness, Lees,
mat
was not
as a
present
retired while
in the
law,
ter
properly
and the
house.
further reflects that
left that fact issue for the
determi
on the
occasion of the
It is
sod-
nation.
the state’s contention that the
omy
people present
properly'
were other
the issue
submitted
the house
but
the witness Lees did
as to whether or not Lees was
complain
people
inform
and the
state
jury’s findings
what
found that Lees was
help
bedroom and
accomplice. Appellant
upon
that he did not call for
relies
640,
outcry during
State,
make an
v.
154
230
Tex.Cr.R.
221;
did he struggle
appellant,
State,
fur-
Tex.
S.W.2d
Gottschalk v.
157
276,
473;
ther testified that he knew
he had
Cr.R.
248
Hinson v.
S.W.2d
wrong.
report
State,
750;
Tex.Cr.App.,
done was
He did not
211
Gal
S.W.2d
anyone
July 14,
lager
State,
254,
v.
131 Tex.Cr.R.
S.W.
97
1964, approximately
State,
2d
Tex.App.
after the
954 and
two months
Medis v.
27
194,
112,
July
position.
occurrence. Lees testified
to sustain his
S.W.
14, 1964,
signed
upon
State,
Huggins
statement
The state relies
v.
juvenile
County,
302,
for the
officer of Lubbock
Gotisehalk was a case which court. boy’s a 13 organ sex fondled Windham, prosecutrix In boy object did not appellant. She daughter of year old resist incident some 30 ab- her have her father made days appellant. The after the arrest by placing relations with normal did not instruct her that mouth and told penis her accomplice’s testimony nor submit to if ever her she mother kill her would a fact issue whether to determine reported did it. She told boy accomplice. The case was acts, this, threats previous because reversed, being boy it if she did. mother kill her and her witness. of whether Issue court submitted the accomplice witness prosecutrix was prosecuting In Hinson’s express some jury. This Court grade in the fifth to the the effect case school, protest sod- dicta Windham daughter that because happened?” “And then he swallowed it.” relationship parties lived the view that clear and relationship same nat- would vivid recollection of the detailed events urally weaken her surrounding resistance his advances the commission of the offense than stranger, if he was transpired and his agreed show she consented or to en- both during and there- gage in such relations. clearly convince us that he was not
drunk nor under the influence of agrees that in Although at the time. toxication is mere mitigation and no de the foregoing analysis From var- fense, it urges its brief that Hug- ious cases cited it is evident that the should consider “the use of malt gins case stands alone so far as the facts liquor by boy”. a IS *4 are in fondling concerned. The act of brief there no its doubt just that case took no The man time. that he consented to the use of reached over and touched vulva liquor imply but that this consent does girl. She had no time remon- consent to but that if strate, other than as she did. The base complainant’s the drink re lowered the sodomist takes a degree materially sistance to such as to least he in this alter his state mind at the time of the reading that a view careful position give inwas Huggins case, viewing consent, refuse then he could no prose- entire of the 13 qualify as an term as that has cutrix, which is not from the been defined. While some there opinion inescap- leads to the proposi
merit to this taking Woodley able conclusion that Judge tion into disposing consideration in of some followed the rule that he announced applying cases different rule to Slusser, though he did not it in IS boys occassions, on such find it we unnecessary to do so in this case. While witness, Lees, We think that the sufficiently we recited the out a matter witness as opinion, set not set forth we fell law and that the learned trial court in detail some the sordid facts holding. Being error in not accom so from the of Don We do so plice witness, necessary his tes it was here in order to alleviate doubt as to timony be corroborated. The sobriety at the time the commission corroborated, being is insufficient of the act of started “Jackson the judgment. sustain messing with me”. was ask ed: messing your “Was he Accordingly, is reversed parts?” “Yes, what he sir”. “Tell me cause remanded. just gave
did?” “He job.” me blow “He just put my private parts”. his mouth over WOODLEY, Judge concurring. put “What private parts?” your just over in the conclusion that the 15 “Well concur “Don, going started and down”. “Yes,
you merely “In reach a climax?” victim of the crime of sir”. “Yes, his mouth?” “And then what sir”.