Phelps v. State , 532 S.W.3d 437 ( 2017 )

OPINION

Opinion by Justice Burgess

After a jury heard evidence that John Robert Phelps engaged in sexual intercourse with his nineteen-year-old biological daughter, they convicted him of prohibited sexual conduct.¹ In accordance with the jury’s verdict, the trial court sentenced Phelps to twenty years’ imprisonment, ordered him to pay a $10,000.00 fíne, and also ordered him to pay $400.00 for his court-appointed counsel.

On appeal, Phelps argues that the evidence is legally insufficient to support the jury’s verdict of guilt because his daughter’s testimony was not sufficiently corroborated. He also argues that the trial court erred in failing to charge the jury that his daughter was an accomplice to the offense as a matter of law.

■ Because we conclude under the facts of this case and the applicable. law that Phelps’ daughter was a victim, rather, than a willing participant in the incestuous relationship, we conclude that she was not an accomplice to the offense. Accordingly, we overrule both of Phelps’ points of error. However, we modify the trial court’s judgment to delete the imposition .of attorney’s fees for court-appointed counsel because the record demonstrates that Phelps was indigent and that the trial court made no determination that he was able to pay those fees. As modified, we affirm the trial court’s judgment.

1. Factual Background

Phelps’ daughter, Ashley, testified that when she was six years old, Phelps made her sit oh his lap while he showed her photographs of children performing sexual acts for their parents. - From that point, Ashley’s childhood was overshadowed by mental, physical, and sexual abuse, which she believed was normal because she “never knew any different [sic],” Ashley testified that Phelps began .penetrating her sexual organ at a young age. When she started her menstrual, cycle at the age of nine, Phelps would test her urine to ensure that she was not pregnant. Phelps continuously warned her that “it would- be’ bad” if she - spoke to anyone about the sexual abuse and that her motherand others would “judge [her] and be mad at [her].” Ashley testified that she kept her silence because she was afraid of the consequences.

Ashley further testified that she could not count how many times she had been sexually abused by her father. She informed the jury that she was unable to physically defend .herself against Phelps who was six feet four inches tall and weighed over 200 pounds. Ashley said, “I would try and push him away, but most of the time it didn’t work, and I'just got to where I gave up trying to put up a fight because it wouldn’t have helped.”

Ashley then described the 2012' occurrence that gave rise to the State’s indictment. She testified that during an argument with Phelps, she “said something ... smart alec, and he hit me open-handedly across the face.”² After the incident, Ashley felt “upset and just aggravated,- and [she]-just wanted to go to sleep to be done with the day.” She changed into her pajamas and went to sleep in her room, but was awakened by Phelps, who “began to touch [her] private area, and ... began penetrating [her].” In her written statement to police, she added that she “tried pushing him away, but he continued.” According to Ashley, Phelps stopped the sexual assault and ’ quickly threw a blanket over her after her mother walked past the door to her bedroom. When Ashley’s mother,’ Támmy Phelps, asked Phelps what he was doing, he responded that he was in Ashley’s room because he felt bad. for hitting her. .

'Tammy testified that she left Phelps- a few days later because she was also scared of him.³- In 2014, Ashley also moved out of the home. Caren Crumbie testified that she invited Ashley to live with her after discovering that she was homeless. They became friends, and Ashley told-Crumbie about the abuse. Crumbie described Ashley’s account as “heart-breaking.” Ashley told Crumbie that she was concerned about her sister, who was ten years younger than Ashley and was still living \yith Phelps. Crumbie testified that the two discussed reporting Phelps’ sexual abuse to the police in the hope of preventing possible abuse of Ashley’s sister.

After the discussion, Ashley contacted Alisha Riehl, a corporal with the Marion County Sheriffs Office, about “[t]he physical and. sexual abuse and the mental abuse that [she] endured.” Riehl testified that Ashley revealed instances of “sexual abuse as a child” .during her interview.

Phelps did not assert that Ashley was a willing participant, but instead denied that the events alleged by Ashley occurred. By the time of 'trial, Tammy hqd reconciled iivith Phelps. She testified that she never saw any inappropriate sexual activity between Ashley and Phelps. According to Tammy, Ashley said that nothing ever happened between her and Phelps.

Rebecca Konrad, who lived with Phelps and Ashley from July 2012 until the end of 2013, also testified that she never witnessed any sexual abuse between them. However, Konrad witnessed verbal, mental, and physical abuse. She testified that Phelps “shoved [Ashley] into a wall and spit in her face and slapped her as well.” According to Konrad, the instances of physical abuse were “too many to count.” When Konrad was seventeen, she became engaged to Phelps after Tammy "left him, but called off the relationship after Phelps began physically abusing her.

After hearing the evidence,, the jury found Phelps guilty,

II. Phelps’ Daughter Was Not An Accomplice

In his first point of error, Phelps argues that Ashley was an accomplice as a matter of. law⁴ and that the evidence is legally insufficient to support the jury's finding of guilt because her testimony was not sufficiently corroborated. “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). An accomplice is one who was or could have been charged with the same or a lesser-included offense. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013).

Phelps cites to Bolin v. State, in which the Texas Court of Criminal Appeals wrote:

It is the established rule that a female who consents to or voluntarily enters into an incestuous intercourse is an accomplice witness. Conversely, if the act is the result of force, threats, fraud, or undue influence, she is not an accomplice witness. If such female is found to be an accomplice witness, then there must be other evidence tending to connect the accused with the offense. If such corroboration is lacking, the evidence will be held insufficient to support the conviction.

Bolin v. State, 505 S.W.2d 912, 913 (Tex. Crim. App. 1974) (citations omitted).

In Bolin, the defendant’s thirteen year-old daughter asked her father if he would purchase hamburgers for her and her siblings. Id. at 912-13. The defendant answered, “Yeah, but you know what you have to do to get ‘em.” Id. at 913. After the children ate the hamburgers that the defendant purchased, the defendant called his child daughter into his bedroom. Id. He asked his daughter to remove her clothes, and she complied. Id. He then engaged in incestuous sexual intercourse with his daughter. Id. At trial, the child testified that her father had been sexually abusing her since she was ten years old and that she had told him “on more than one occasion that sex hurt her and she did not want to do it.” Id. After citing the rule mentioned above, the' Court of Criminal Appeals concluded that the child was not the victim of force, threats, or fraud because “the evidence showing that she made neither outcry nor resistance, although others were nearby” established that she was an accomplice. Id. The court also concluded that the child was not the victim of undue influence because “[a] woman whose consent to an act of intercourse is obtained by the payment or promise of money would ordinarily be held an accomplice.” Id. Accordingly, the Texas Court of Criminal Appeals held that the child was an accomplice as a matter of law. Id. at 914.

In declining to apply Bolin in the past, we have previously noted that a person under the age of seventeen is legally incapable of giving consent to intercourse. Duby v. State, 735 S.W.2d 555, 557 (Tex. App.-Texarkana 1987, pet. ref'd). However, Duby involved a complaining witness who was a minor, whereas, the complainant in the present case was nineteen years old at the time of the act resulting in the present prosecution. Moreover, the cases citing the rule followed in Bolin have held that evidence such as that presented in this record does not rise to the level of “outcry nor resistance” sufficient to allow conviction without corroboration of the complaining witnesses’ testimony. Nevertheless, as is shown below, the rule in Bolin is no longer applicable because the incest statute in effect when the rule was adopted was amended in 1973, thereby superseding the Bolin case.

The rule in Bolin was adopted in 1885 in the case of Mercer v. State, where the court of appeals⁵ held,

It was entirely upon the testimony of the defendant’s daughter, with whom the incestuous intercourse is alleged to have occurred, that this conviction was obtained. ... If the witness, knowingly, voluntarily, and with the same intent which actuated the defendant,' united with him in the commission of the crime charged against him, she was an accomplice, and her uncorroborated’ testimony cannot support the conviction. But if, in the commission of the incestuous act, she was the victim of force, threats, fraud or undue influence, so that she did not act voluntarily, and did not join in the commission of the act with the same intent which actuated the defendant, then she would not be an accomplice, and a conviction would stand even upon ■her uncorroborated testimony.

Mercer v. State, 17 Tex-App. 452, 465 (1885) (citation omitted). To Understand the basis for this rule, and why the rule is no- longer applicable to the current incest statute, we must compáre the current and former Texas incest statutes.⁶

The incest statute in effect when Mercer was decided was Article 329 (later renumbered as Article 495) of the.Texas Penal Code of 1879. It said, “All persons who are forbidden to marry by the succeeding articles, who shall intermarry' or carnally know each other, shall -be punished by imprisonment in the penitentiary not less than two nor more than ten years." Act of Feb. 21, 1879, 16th Leg., R.S., SB 20 (1879 Penal Code not printed, in General and Special Laws of Texas), https://www.sll. texas.gov/assets/pdfdiistorical-statutes/ 1879/1879-4-penal-code-of-the-state-oftexas.pdf. The statute remained virtually unchanged until 1973, when the current Penal Code was adopted, creating Section 25.02. Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 25.02, 1973 Tex. Gen. Laws 883, 921-22 (amended 1993, 2005, 2009) (current version at Tex. Penal Code § 25.02 (West 2011)). The. 1973 version of.the statute stated, “An individual commits an offense, if he engages in sexual.intercourse .., with a person he knows to be, without regard to legitimacy[, related within the prohibited degree of kinship].” Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 25.02, 1973 Tex. Gen. Laws 883, 921-22 (amended 1993, 2005, 2009). The current version of Section 25.02 contains essentially the same language as the 1973 version.⁷

“When the legislature amends a statute, we presume the legislature meant to change the law, and we give effect to the intended change.” Brown v. State, 915 S.W.2d 533, 536 (Tex. App.-Dallas 1995), aff'd 943 S.W.2d 36 (Tex. Crim. App. 1997) (citing Cook v. State, 824 S.W.2d 634, 643 (Tex. App.-Dallas 1991, pet. ref'd)); see also Lafayette v. State, 835 S.W.2d 131, 134 (Tex. App.-Texarkana 1992, no pet.) (“In construing a statute, we must presume that all of the language employed by the Legislature has a meaning and purpose.”). “We also presume the legislature was aware of all caselaw affecting or relating to the statute.” Brown, 915 S.W.2d at 636 (citing Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992), superseded by statute on other grounds as recognized by Lopez v. State, 253 S.W.3d 680, 686 n.28 (Tex. Crim. App. 2008)). Moreover, “[w]e presúme that the legislature used every word for a purpose and excluded every word excluded for a purpose.” Id. (citing Cook, 824 S.W.2d at 643).

Obviously, a defendant cannot commit the offense of incest without the participation of another person, but the other person’s participation can be willing or unwilling. If the other person willingly participates in the act of sexual intercourse, the relationship between the parties is one of perpetrator and accomplice (or co-perpetrators).⁸ On the other hand, if the other person unwillingly participates, the relationship between the parties is one of perpetrator and victim.⁹ This distinction is significant to the application of the accomplice-witness rule in incest cases.

Ordinarily, “[i]t is incumbent upon the accused to develop such facts as would show that the [accomplice witness] rule applies.” Lundy v. State, 164 Tex.Crim. Ill, 296 S.W.2d 775, 776 (1956). Yet, the rule announced in Mercer and restated in Bolin effectively reversed this burden in incest cases, requiring the State to corroborate the complainant’s testimony unless it presented evidence .establishing that the accomplice witness rule did not apply. Thus, in Sanders v. State, the Court of Criminal Appeals held,

It seems to be the well-settled rule.in this state that ordinarily the prosecutrix in an incest case is an accomplice and that her testimony needs to be corroborated as to the-main fact sought to be established, unless her testimony, brings ■her within an exception to the general rule when such means as force, threats, etc., are used to overcome resistance.

Sandéré v. State, 132 Tex.Crim. 25, 102 S.W.2d 208 (1937). Likewise, in Mercer, the Court of Appeals defined the issue as follows: '

By far, the most embarrassing question to us, which is presented in this case for our determination, is the sufficiency of the evidence to sustain the conviction. If the prosecuting witness was not an accomplice, then the evidence is unquestionably sufficient. If, on the other hand, she was an accomplice, her testimony, if not corroborated to the extent required by law, is insufficient. The first inquiry, therefore, is, does the evidence warrant the conclusion that she was not an accomplice?

Mercer, 17 Tex.App. at 465. In Alexander v. State, the Court of Criminal Appeals held that" “[i]ncest ■ is an offense against society in which both parties ordinarily engage with the same intent and purpose; hence both parties to the offense are principals and equally guilty.” Alexander v. State, 126 Tex.Crim. 625, 72 S.W.2d 1080, 1082 (1934).

This burden shift was consistent with the former version of Section 25.02 in effect when Mercer was decided.¹⁰ Because the former statute declared “all persons [within the prohibited degree of relationship] ... who shall intermarry or carnally know each othef’ to be guilty of incest, the former statute effectively presumed that the parties were perpetrator and accomplice (or co-perpetrators).¹¹ Consequently, in order to prove that the act of sexual intercourse occurred, the complainant’s testimony had to be corroborated unless there was affirmative evidence establishing the complaining witness was not an accomplice.

However, the current version of Section 25.02 applies to “a person ... [who] engages in sexual intercourse ... with another person ...Tex. Penal Code Ann. § 25.02 (West 2011) (emphasis added). Thus, the amended statute eliminated the presumption under the prior statute that both parties were perpetrator and accomplice (or co-perpetrators). Now, under Section 25.02, as in any other criminal prosecution, the defendant must point to sufficient evidence in the record establishing that the complaining witness was an accomplice in order to invoke- the accomplice witness rule. There is no longer a statutory presumption that the complaining witness was an accomplice unless the State proves that she was not.¹² This amended language not only returned the burden of establishing the basis for application of the accomplice witness rule to the accused in incest cases, it also reflects the seismic shift in the law regarding sexual assault cases between 1885 and the 1970s.¹³ This is particularly so when the incestuous act is between • a parent and child, beginning in childhood and continuing into adulthood.¹⁴

Consequently, the rule announced in Mercer and restated in Bolin was superseded by the 1973 amendments to the incest statute.¹⁵ Under Section 25.02 as it exists today, evidence merely establishing that the complainant was an adult and failed to complain or resist is not sufficient to establish that an incest victim was an accomplice. Cf. Smith v. State, 332 S.W.3d 428, 439-40 (Tex. Crim. App. 2011) (holding “[a] person is not an accomplice if the person knew about the offense and failed to disclose it or helped the accused conceal it”). Rather, there must be affirmative proof establishing the complaining witness willingly participated in the act of sexual intercourse upon which the prosecution is based. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (“To be considered-an accomplice witness, the witness’s participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged.”).¹⁶

. Phelps fails to direct us to any affirmative proof establishing that Ashley was an accomplice as a matter of law. In the absence of such evidence, Ashley was a victim, not an accomplice, and no corroboration of her testimony was necessary. Thus, we overrule Phelps’ first point of error, Our ruling is also dispositive of Phelps’ second issue, which argues that the trial court erred in failing to submit an instruction which instructed the jury that Ashley was an accomplice as a matter of law. “A trial judge ... has no duty to instruct the jury that a witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is an accomplice.”' Druery, 225 S.W.3d at 498. Because we' find that Ashley was not an accomplice, the trial court did not err in denying Phelps’ requested jury instruction.¹⁷

III. Modification of the Judgment

Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney’s fees only if “the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided ..., including any expenses and costs.” Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2016). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there was no finding that Phelps was able to pay them, the assessment of attorney’s fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.-Texarkana 2013, no pet.).

This Court has the power to correct and modify the judgment of the trial court sua sponte for accuracy when the necessary data and information are part of the record. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd) (“The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.”). Therefore, we modify the trial court’s judgment by deleting the assessment of attorney’s fees.

IV. Conclusion

We modify the trial court’s judgment by deleting the assessment of attorney’s fees and affirm the trial court’s judgment, as modified.

Concurring Opinion by Chief Justice Morriss

Dissenting Opinion by Justice Moseley

1 . Section 25.02(a)(1) of the Penal Code states that a "person commits an offense if the person engages in sexual intercourse or deviate sexual intercourse with another person the actor knows to be, without regard to legitimacy ... the actor's ancestor or descendant by blood or adoption.” Tex Penal Code Ann. § 25.02(a)(1) (West 2011).

2 . Ashley said it was “very common’’ for Phelps, to hit her.

3 . Tammy’s friend, Cathryn Snellgrove, testified that Tammy confided in her and that she helped Tammy formulate a plan to leave Phelps abruptly because they believed that Tammy’s life was in danger.

4 . The trial court instructed the jury that

[a] conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must also tend to connect the defendant with its commission.

By finding Phelps guilty, it can be presumed the jury found either that Ashley was not an accomplice and, therefore, no corroboration was required, or that she was an accomplice and her testimony was sufficiently corroborated by other evidence. However, on appeal, Phelps argues that the evidence is insufficient to sustain the conviction because it fails to corroborate the testimony of Ashley, who is an accomplice as a matter of law, The State replies that "the evidence is sufficient to support the verdict as no corroborating evidence was required because Ashley Phelps was not an accomplice since the sexual act was the result of force, threat, fraud or undue influence.” As briefed, the State does not argue that it sufficiently corroborated Ashley’s testimony, only that she was not an accomplice and therefore no corroboration was required. Accordingly, we only consider the question of whether Ashley was an accomplice as a matter of law and not whether sufficient corroborating evidence was presented if she was an accomplice.

5 . The Court of Criminal Appeals was created in 1891 by Constitutional Amendment. See S.J.R. 16, 22nd Leg., R.S. 1891, approved August 28, 1891. Before that, Article V, section 1 of the Texas Constitution read, "The judicial power of this State shall be vested in one Supreme Court, in a Court of Appeals, in District Courts, in County Courts, in Commissioners’ Courts, in Courts of the Justices of the Peace, and in such inferior courts as may be created by law.” Tex. Const, amend. V, § 1 (amended Aug. 28, 1891).

6 . The dissent’s assertion that we must follow the Bolin opinion in this case notwithstanding the 1973 amendments to the incest statute highlights an important issue regarding stare decisis. As one commentator has explained the doctrine,

[W]hen.a court enunciates a rule of law to be applied in[ ] the case at bar, it not only establishes a precedent for subsequent cases under the doctrine of stare decisis, but it establishes the law, which other courts owing obedience to it must, and which in itself will normally apply in subsequent proceedings in that case.

James Wm. Moore & Robert Stephen Oglebay, The Supreme Court, Stare Decisis and Law of the Case, 21 Tex. L. Rev. 514, 540 (1943) (footnote omitted). Yet, the binding effect of cases under the stare decisis doctrine varies depending on two factors: (1) whether the original case involved an interpretation of common law, the constitution, or a statute and (2) whether the original case was written by the court considering the prior case or by another court of equal jurisdiction (horizontal stare decisis) or was written by a higher court (vertical stare decisis). See Brian C. Kalt, Three Levels of Stare Decisis: Distinguishing Common-Law, Constitutional, and Statutory Cases, 8 Tex. Rev. L. & Pol. 277, 278 (2004); see also Andrew T. Solomon, A Simple Prescription for Texas’ Sailing Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417, 425-32 (2006).

Under horizontal stare decisis, courts possess the greatest amount of discretion to revisit their own cases or-cases issued by courts of equal jurisdiction which involve constitutional or common-law questions. However, " ‘in the area of statutory construction, the doctrine of stare decisis has its greatest force’ because the Legislature can rectify a court’s mistake, and if the Legislature does not do so, there is little reason for the court to reconsider whether its decision was correct.” Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447-48 (Tex. 2008) (quoting Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex. 1968)). Therefore, under horizontal stare decisis courts have less discretion to revisit their own cases or cases issued by courts of equal jurisdiction which involve statutory interpretations. Under vertical stare decisis, lower courts have practically no discretion to revisit a case issued by a higher court regardless of whether' it involves a constitutional, common-law, or statu-’ tory question. Consequently, it would seem that a lower court could never consider the validity of an opinion issued by a higher court on a statutory question.

Nevertheless, when the Legislature amends a statute after it has been interpreted by a court, a different factor comes into play. Traditionally, "super stare decisis” is justified in one of two ways: (1) if the Legislature disagrees with the court’s ruling, it can amend the statute, so that its failure to amend is considered as acquiescence to the court's ruling; or (2) because the courts cannot avoid statutory interpretation “the first time á statutory ambiguity is presented to it” it must interpret the statute, but once the court has ruled, its "refusal to revisit a statutory interpretation is a means of shifting policymaking responsibility back to Congress, where it belongs.” Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317, 317-18 (2005). Yet, where the Legislature substantively amends a statute after a decision has been issued interpreting the statute, the courts can no longer engage in the assumption that the Legislature acquiesced in the prior case holding. Moreover, by amending the statute, the Legislature exercised its policymaking, responsibility in response to the prior case. Thus, when faced with post-decision statutory amendment, the justifications for "super stare decisis” not only fail, they actually compel a court’s re-evaluation of-the statute out of deference to the Legislature's supremacy on statutory issues.-

Clearly, under horizontal stare decisis a court has the authority to revisit its own prior decision (or the prior decision of a court of equal jurisdiction) in view of a subsequent statutory amendment. See Ex parte Sumner, 143 Tex.Crim. 238, 158 S.W.2d 310, 312 (1942) ("The Wulzen case, supra, relied upon by appellant ... was written in 1916, before the passage, in 1920, of Section 1546, supra. The provisions of said section are'controlling here. The holding in the Wulzen case being at variance therewith, of necessity yields thereto.”). Yet, even a lower court has die authority to consider the continued applicability of a prior decision by a higher court when a statutory amendment supersedes the prior decision. See Sarmiento v. State, 93 S.W.3d 566, 568: (Tex. App.-Houston [14th Dist.] 2002, pet. ref’d) (citing. Gonzales v. State, 697 S.W.2d 35, 38 (Tex. App.-Houston [14th Dist.] 1985, pet. ref’d) (holding that because the Legislature’s post-decision amendments to Article 42.12 of the Texas Code of Criminal Procedure overruled the Court of. Criminal Appeals’ interpretation of thq former version of that statute, .it was no longer bound by the higher court's pre-amendment opinion)); Coy v. State, 831 S.W.2d 552, 556 n,4 (Tex. App.Austin 1992, no pet.) (per curiam) ("The 1989 amendment of art, 37.07, § 3(a), effectively overrules Murphy v. State, 777 S.W.2d 44 (Tex. Crim. App. 1988,")); Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.-Austin 2004, no pet.) ("As an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.") (Emphasis added).

As ■ is explained below, the Legislature amended the Texas incest statute after the Bolin case was tried, The amendment effectively superseded the statute upon which Bo-lin was based. Accordingly, we do not violate stare decisis by distinguishing the Bolin decision based on the current statute.

7 . See supra note 1.

8 . See Bohannon v. State, 84 Tex.Crim. 8, 204 S.W. 1165, 1168 (1918) (Prendergast, J., dissenting) (“[I]f the act is voluntary and with the same intent committed by the father and daughter, the daughter is a principal precisely the same as the father.”).

9 . In Mercer, the Court of Appeals held,

Notwithstanding the evidence in this case may show that the defendant committed rape upoti his daughter, he may be prosecuted and convicted for incest; and that, to make him guilty of incest, it was not necessary that his daughter should have consented to his carnal knowledge of her. She might be entirely innocent of any crime, and yet he might be guilty of rape or incest, or both, by having carnal knowledge of her.

Mercer, 17 Tex.App. at 464.

10 . Bolin was decided in 1974. The opinion does not state whether the defendant in Bolin was prosecuted under the 1973 Penal Code or the previous version, but the opinion does state that "[t]he indictment alleged that appellant committed incest with the prosecutrix on or about the 18th day of February, 1973.” Bolin, 505 S.W.2d at 912. Moreover, the 1973 Penal Code took effect on January 1, 1974, Hicks v. State, 587 S.W.2d 422, 423 (Tex. Crim. App. [Panel Op.] 1979), and a defendant may not be prosecuted for "violation of a penal statute not in effect on the date alleged in the indictment.” Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995). Accordingly, it is clear that the defendant in Bolin was prosecuted under the former version of the incest statute.

11 . In Mercer, the Court of Appeals rejected the defendant’s argument that "in using the words ‘carnally know each other,’ ” the incest statute "presupposes the consent of both parties” and therefore, “a rape of the woman by the man excludes the crime of incest, and ... where incest is, rape cannot be.” Mercer, 17 Tex.App. at 463. Nevertheless, the Court of Appeals went on to hold that the State had to prove that the complaining witness was not an accomplice. Id. at 465. Accordingly, the Court of Appeals did not hold that the statute did not presume the complaining witness was an accomplice, only that the statute did not make the offenses of sexual assault and incest mutually exclusive.

12 .Of course, the State can still prosecute both parties under Section 25.02 if there is evidence that both parties willingly engaged in the conduct with one another, Cf. McCrory v. State, 854 S.W.2d 262 (Tex. App.-Eastland 1993, pet. ref’d) ("If appellant’s daughter was a willing participant, she would be an accomplice.”). In that instance, both would be "a person ... [who] engages in sexual intercourse ... with another person .... ” Tex. Penal Code Ann. § 25.02 (emphasis added). Likewise, in that instance, both parties would be perpetrators (or perpetrator and accomplice), and the accomplice witness rule would apply.

But where the State only charges one party and offers testimony from the complaining witness to prove the defendant's guilt, the complaining witness’s testimony need not be corroborated unless there is affirmative evidence establishing that she willfully engaged in the prohibited sexual conduct. Just as in any other criminal prosecution, the defendant would have to “develop such facts as would show that the [accomplice witness] rule applies.” Lundy, 296 S.W.2d at 776. And, under the current statute, merely showing that the complaining witness did not physically resist the defendant’s actions is not sufficient to establish that she willingly participated in the conduct.

13 . Contrary to the dissent's characterization of our observations of thé seismic shift in the legal and societal bases for the Bolin rule as personal opinions outside the record, the history of changes in sexual assault law has been carefully documented in law reviews and secondary sources. Cf. James A. Vaught & Margaret Henning, Admissibility of a Rape Victim’s Prior Sexual Conduct in Texas: a Contemporary Review and Analysis, 23 St. Mary’s L.J. 893, 894-95 (1992) (discussing the "rape'reform movement” beginning in the 1960’s and 1970’s which resulted in the fenactment of Rule 412 of the Texas Rules of Evidence). Moreover, such history is relevant to our consideration, of the effects of the 1973 amendments to the Texas Incest Statute because they tend to show that those amendments were not merely procedural, but were,substantive amendments intended to bring the Texas law of incest into conformity with the modem law concerning sexual assault cases. See Tex. Gov’t Code Ann. § 311.023 (West 2013) ("In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the ... (2) circumstances under which the statute was enacted ....”).

14 . Compare Mannie v. State, where the concurring justice argued that a line of Court of Criminal Appeals cases dating back to 1911, which recognized a "sort of ‘res gestae’ exception for cases involving sexual offenses” making "extraneous transactions between a defendant and the complainant ... admissible,” was based on an assumption about child sexual assault cases that is no longer consistent with modern viewpoints:

Society considered sexual abuse so rare and despicable that it was inherently unbelievable, requiring considerable corroboration. The child was deprived of the deference ordinarily accorded to witnesses by the fact finder because she was testifying to something absolutely unbelievable. Since [the previous] era, public awareness of child sexual abuse has increased considerably. See D. FINKELHOR, CHILD SEXUAL ABUSE 1 (1.984). Today, a child alleging child sexual abuse is not automatically disbelieved. In fact, many people believe such stories absolutely, considering the child incapable of fantasizing such occurrences.

Mannie v. State, 738 S.W.2d 751, 758-59 (Tex. App.-Dallas 1987, pet. ref’d) (Thomas, J., concurring) (discussing Boutwell v. State, 719 S.W.2d 164, 173 (Tex. Crim. App. 1985) (op. on reh’g), abrogated by Vernon v. State, '841 S.W.2d 407, 410 (Tex. Crim. App. 1992)). Justice Thomas further noted,

The rationale [behind the mle discussed in Boutwell} seems based upon the assumption that the child is somehow at fault for allowing the rape unless there is proof that she was seduced by the accused. Society's perception of the victim of sexual assault has changed considerably since 1911. It is no longer a prevalent belief that the victim "asked for” the assault to háppen, or that the victim is in any way culpable for allowing the assault to occur. By accepting the rationale of [the previous case law] that it is necessary to show that the child’s resistance was overcome by seduction or allurements, the Boutwell court is preserving the antiquated perceptions of the victim as being at fault.

Id. at 759-60. Shortly after Mannie, the Court of Criminal Appeals held that the rule in Boutwell was no longer valid, noting that even in Boutwell, the rule had "received only a small plurality of the votes” and that it had already questioned the rule's validity in cases since Boutwell. Vernon, 841 S.W.2d at 410.

15 .In Brown v. State, the Court of Criminal Appeals cited to Bolin after the 1973 amendments without discussing its continued applicability in light of the amended statute. Brown v. State, 657 S.W.2d 117, 118 (Tex. Crim. App.

[Panel Op.] 1983). In Brown, the defendant "specifically challenge[d] the sufficiency of the corroboration of the complainant’s testimony.” Id.., The , Court of Criminal Appeals observed that the complaining witness "began hitting appellant and trying to get up. Appellant then told pier] that he would kill her husband if she did not comply,” Id. On the basis of this evidence, the Court of Criminal Appeals held, "Viewing the evidence'-in the light most favorable to the State, the evidence shows that L_M_was compelled to participate in incestuous intercourse with appellant through the use of force, threats and undue influence. Thus, L_M_is -not an accomplice Id.

Under previous cases interpreting the standard adopted in Mercer and followed in Botin, it is doubtful that evidence of threats alone would have been sufficient to overcome the Bolin presumption that the victim, in Brown was an accomplice. See Trejo v. State, 135 Tex.Crim. 39, 117 S.W.2d 115, 115 (Tex. Crim. App. 1938]) (Court of Criminal Appeals held "[w]e are unable to reach the conclusion that the witness was not an accomplice” despite testimony by complaining witness that her father “had sexual intercourse with her about five times 'in the cotton-picking time” during the year 1937, that "[m]y father drew a knife on me and forced me to do that with him,” that "I was afraid of him,” and that "[appellant] told her he would kill her if she reported the matter to her folks”); Sanders v. State, 132 Tex.Crim. 25, 102 S.W.2d 208, 208 (1937) (complaining witness was an accomplice as a matter of law’despite her testimony "that she permitted [her father to have sexual' intercourse with her] because he threatened to whip her with a belt; that she did not say anything about it to any one for a long time; [and] that at the time of the alleged incestuous act she was a few months past the age of fifteen years”); Tate v. State, 77 S.W. 793, 795-97 (Tex. Crim. App. 1903) (Henderson, J., dissenting) (holding that complaining witness's "passive submission]” to her father’s "act of carnal intercourse” with her "without her consent” and that she failed to outcry or resist because "she was frightened” were insufficient to show she was not an accomplice); Marchbanks v. State, 125 Tex.Crim. 436, 68 S.W.2d 1038, 1039 (1934) (holding that complaining witness was an accomplice as a matter of law despite her testimony that "I didn’t consent to it ... when I had intercourse with my father, I tried to get away but I couldn’t do it. I tried to get loose from him. ... I tried to get up and hit him but that didn’t do no good. He was so much stouter than I was” was insufficient to establish that she was not an accomplice). Accordingly, by ruling that the defendant's threat to kill the victim’s husband was sufficient evidence for a jury to find that the victim was not an accomplice, it could be argued that Brown lowered the standard of proof, necessary to prove the complaining witness was not an accomplice without expressly saying so..

It seems indisputable that, the pre-1940 cases cited above are inconsistent with modern societal and legal views regarding lack of consent in incest cases to the point of being offensive to modern sensibilities. Thus, it is tempting to rule that the .1973 amendments did not supersede Bolin, but that the Bolin standard was modified by Brown so that the evidence in this case is sufficient to meet that new, post -Brown standard. Two problems exist with this proposed solution. First, the Court of Criminal Appeals reached the same conclusion in Brown that it had reached back in 1934. See Alexander v. State, 126 Tex.Crim. 625, 72 S.W.2d 1080, 1084 (1934) (op. on reh’g) (complaining witness’s testimony that "No, sir, I did not submit to that intercourse with him of my own free will” and that ”[h]e told me if I didn’t do it, he would blow my damn brains out” created a fact question of whether the complaining witness-was an accomplice or not). Thus, it is not clear that Brown changed anything. The second problem is that even if Brown can be interpreted as changing the Botin standard so that evidence of threats is sufficient, no evidence of threats exists in this record. As an intermediary court of appeals,, we could not lower the Bolin standard any further than it was arguably lowered in Brown. See supra.

Nevertheless, we need not anguish over such matters. The Legislature remedied this problem when it amended the incest statute in 1973. Because, there was sufficient evidence in Brown upon which the jury could .have found that the complaining witness was not an. accomplice under Bolin, the Court of Criminal Appeals did not need to address the continued applicability of the Bolin decision in light of the 1973 amendments to the incest statute. Therefore, nothing in Brawn is inconsistent with our holding here.

16 . We respectfully disagree with the dissent’s conclusion that the evidence in this case affirmatively establishes that Ashley willingly participated in the act of intercourse for which Phelps was charged. The dissent points to Ashley’s testimony that.-she refused to engage in oral sex or “French kissing” with her father and that he did not force her to. The dissent also concludes that because Ashley testified that "most of the time [resistance] didn’t work,’’ it necessarily sometimes did, and therefore, her own testimony establishes that she willingly participated in the act of Sexual intercourse, The problem with that analysis is that it equates an incest victim’s . resignation to a continuing cycle of sexual assault from age six through adulthood with willing participation. Under that reasoning, a défendant could convert the complaining wit- . ness into an accomplice simply by continuing the abuse long enough that she gives up attempting to resist.

In interpreting a statutory amendment, we are not to give an interpretation that would lead to an absurd result. Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005) ("We interpret a statute according to the literal meaning of the words in the statute, unless doing so would lead to an absurd result that the legislature could not have intended.”). Accordingly, we hold that in order to prove Ashley was an accomplice under the amended statute, Phelps cannot establish Ashley willingly participated in the sexual intercourse merely by showing that she did not forcibly resist his actions when she was nineteen after suffering thirteen years of a continuing cycle of abuse. Rather, he must point to affirmative evidence that she willingly participated in the sexual intercourse constituting the act of incest for which the defendant is charged.

17 . The dissent appears to misunderstand our opinion, when it states, "Incest is not a singular act; there must be at least two participants,” That point is obvious, and we state as much when we say," “Obviously, a defendant cannot commit the offense of incest without the participation of another person .,.. ” We do not hold, as the dissent suggests, that the 1973 amendment somehow negated the requirement that two parties be involved for the offense of incest to occur. Rather, we hold that the amendments eliminated the presumption under the prior statute that the complaining witness was an accomplice witness unless the State proved she was not. Now, as in any criminal offense, the defendant must point to affirmative evidence establishing that the complaining witness willingly participated in the act of sexual intercourse upon which the offense is based.