*1 .644 hardly blowing hot and cold could typical
A more case both going validity pass imagined. my are brethren being ought not it invalid as to hold sentence judgment. supported by Lewis v. a valid based 495, Rep. 162; State, Texas Cr. Elliott v. 155 235 S.W. than two punishment of not less The indefinite 2d 796. penitentiary twenty years rendered nor more than judgment invalid. valid, why the originally judgment as entered was If the asking ques- pro proceeding it? The tunc to correct nunc had to it, judgment invalid
tion answers be corrected. passage of a authorize the judgment
An will invalid Horn v. valid sentence.
2d 145. flagrant usurpation authority this open
To this determining validity in this case of the sentence court can dissent. but
Foster Truman Oldham State. 1959. 30,237. March No. Rehearing April 15, Motion for Overruled State’s Houston, Richard- Mabry, George Donalson, and R. A. Frank *2 Kountze, son, appellant. for Ward, Jr., D. Attorney, Thomas Walton, Lee P. Dan District Houston, Douglas, Attorney, and Leon
White, Assistants District Austin, Attorney, for state. State’s
DAVIDSON, Judge. any person 535c, P.C., it unlawful for Art. makes Vernon’s knowingly intentionally expose his with intent to lascivious any person, genital organs male or private parts or her female, years. age under the of sixteen charg- alleged by The indictment a that statute violation of ing intent, knowingly and appellant did, with lascivious Hughes, intentionally expose Tommy penis to male child a age years. was assessed at two under the sixteen Punishment years county jail. again condemning upon
areWe called to affirm a conviction penal one to no testified show- servitude when witness to facts ing which he committed act for was convicted upon conviction was not and when given evidence which the rests open by any court witness under sanction of an oath perjury. pains penalties and under conviction, however, circumstances, A under is author- such gestae and has statements of ized been authorized Kenney incompetent testify are children who as witnesses. 817; State, State, Rep. Dickey v. v. 147 State, 469; Rep. 150, Haley 247 2d 157 Texas Cr. 183 v. S.W. 400; 274 2d Heflin v. Texas Cr. S.W. S.W. 2d 681; Williams theory ad- declarations which are The sanctity they derive their of an is that mitted without oath under which credibility from stress of circumstances persons and not from trustworthiness are made making them. Hughes, four-year-old Tommy injured party, testify did not as a witness in the case his in-
competency.
It is the statement the child made to his mother and to which conviction, she testified which the state relies for without guilt. appellant’s which there is not sufficient evidence to show Here are the circumstances under which the child made the statement:
Tommy parents with lived across two brothers appellant. street from the About one o’clock the afternoon Tommy granted go permission appellant’s asked and was play dogs. house and remained there forty-five returning minutes before home. His mother got *3 and the child then car into her and went the to home of Tommy stayed a sick played friend. and with the outdoors children there. The mother remained at the home the friend afternoon, of for about an or hour until in about three o’clock the Tommy at Tommy which time she and returned home. then played neighbor with his and time and brother children for a later went into the house and watched television. o’clock, Tommy’s
About 5:30 father came About home. the arrival, setting time of his mother, the child told his was who evening meal, the table for the that he wanted “some chocolate supper.” “Tom, him, you milk for His mother then said to don’t do, drink replied, “Huh-huh, chocolate milk.” The I I child had today” (Foster being appellant). some at Foster’s His “Oh, you Tommy inquired, replied, mother then did drink it?” right “Yes, put my Foster after his tinkler mouth I did.” Tommy always penis The mother testified that referred as “his permitted tinkler.” The was detail the mother then child, further conversation she had as follows: * * Tommy. said, you ‘Tommy “Then I asked I 'what were doing Foster,’ said, he wasn’t bathroom with ‘we bathroom, you drinking mommie. I told we were chocolate ” milk, we was in his kitchen.’ during
The mother testified that the child’s narrative questions “quite incident as well as the and answers was * * * unpertured by it, in that to him don’t think he realized .” principle touching there cardinal be one the admission hearsay is declarations under rule of it that of spon- natural and must spontaneity. The declarations be the idea outgrowth must exclude main fact and taneous character Any must be of such premeditation. statement speaking it was the event justify as to through the conclusion talking some event. person person about and not only occurrence the narration of some former But if it be thing concerning outcry spontaneous not a Jur., Evidence, done, Criminal it is not admissible. . Cases, 182, p. Sec. through talking facts
The test is: the declarations the “Were talking facts? Instinctiveness party party’s or the Edition, P.C., requisite.” Yol. Sec. 105 is the Branch’s page 120. generally, foregoing applicable, are the rules that are making person the statement whether the
without reference to testify incompetent a witness. as making incompetent person the statement is When appears that, testify here —it as a witness —such as as rules, general it must shown that in addition to the age intelligence his declaration to render was of sufficient reliable. facts, we find that
Applying stated instant the rules to the period three hours. not made for a of about the declaration was During presence of his mother time the was in the child *4 play children and evi- He entered into and other children. Indeed, anxiety his mother whatsoever. denced no nervousness unperturbed realize the and did not that the child was said Moreover, significance happened. the statement or of what had by propounded by questions child arose out of declaration the drinking matter chocolate milk. Such his mother relative to incidentally. only child the statement of the relation to bore Upon bearing any upon the face, reflect or have its it did not appellant. the conduct of in- spontaneity and that the demand of have concluded We statement of of. the admission to authorize the stinctiveness P.C., 2d Edi- gestae Branch’s met. as res has not the child been p. 121. tion. Vol. Sec. gestae statements the res cited where
The cases heretofore child,were gestae that show part of the admitted as of a knew perpetrated, realized the assault had been
or, least, something wrong had occurred. comparable appears. No such situation here The admission statement, here, the of was not authorized under the authori- ties cited. conceded, however,
If it be the the statement of child part gestae, was prove anything as a admissible of the res the statement did not prosecution. material to this “tinkler” word necessarily “penis.” did refer the “tinkler,” used, To show that the word as had reference to “penis” appellant, the of the state resorted to and relied explanatory testimony of the mother. then, analysis, guilt
inSo the final appellant of the rests opinion meaning of the witness as to of evi- dence. gestae
Res speaking through is the party. transaction It party speaking relating is not the of or the facts. The declarant regarded testifying is not witness, true, as a being as such. That gestae impeachment. the res subject statement is not Jones gestae of in this child case was not subject impeachment, by process reasoning the same meaning gestae of the words used in the res statement would subject explanation and, thereby, not be to contradiction. Moreover, expressed opinion when the mother her as to what child the province meant jury’s word “tinkler” she invaded the giving personal to determine facts. She her opinion probative as to the force and effect the facts.
The res statement of the child and the mother’s in- terpretation necessary thereof are case, to a conviction in this guilt without which the is not shown. unnecessary fact renders a discussion Such *5 alleged thereof, or the a confession effect because can conviction extrajudicial not be sustained alone an confession. the confession to show that be relied ex- nega- privates exculpatory his statements hibited living fact that such was the intent were not dis- lascivious proven 'by the state.
The erroneous admission in evidence of the requires reversal of this conviction. It is so ordered. Presiding
MORRISON, Judge, (concurring). agree I to the reversal of this conviction feel that I but should my position make my opinion rehearing clear because of on Haley 2d 400. In Haley, injured report Copelands of the child was made to the some hours after the assault. point were careful to out that We injured presence accused, child remained necessarily by him, was explained intimidated which fact her speak failure to sooner. We have no such facts us before here. presence left the accused was in the mother some three and one-half hours before he made the statment gestae. part which is contended was of the res It must be remem- bered that if the statement or declaration is that of the witness speaking narrating facts, part it is not a gestae. Williams v. spontaneous 482. The declaration must so the court say fairly speaking through it can is the incident the actor. Judge not confession, Davidson does discuss rightly so, nothing jurisprudence think it adds to the to recite the details of a confession it unless is In corroborated. bar, Tommy’s case it was corroborated unless state- spontaneous following outcry ment at five was o’clock some- thing shortly one that occurred after o’clock. The facts show that it not.
I concur.
Durwood E. Pelton v. State. 30,498. No. March 1959. Rehearing April 15, for Motion Overruled