Hernandez v. State

OPINION

CANTU, Justice.

This is an appeal from a conviction for rape of a child. In a bench trial, the court found appellant guilty and assessed punishment at sixteen (16) years’ confinement.

Appellant and the minor victim’s mother were both indicted for this offense. In pertinent part, the indictment alleged,

[T]hat Ralph Hernandez and Ema G._ C_ on or about the 28th day of April, A.D. 1978, and anterior to the presentment of this Indictment, in the county and State aforesaid, did then and there unlawfully, intentionally and knowingly have sexual intercourse with N-C-, a female younger than 17 years of age and not the wife of the said Ralph Hernandez or of Erna G_ C_

The State relied entirely upon the testimony of two witnesses, the minor victim and her mother, to prove up a case against appellant of rape of a child under the provisions of Tex.Penal Code Ann. § 21.09 (Vernon Supp.1981).¹ Appellant did not testify but did offer evidence supporting the improbability of the truth of the charge.

The minor victim’s mother testified at the trial and admitted to the unpardonable act of subjecting her minor daughter to the sexual appetite of her paramour. Whether she encouraged or initiated the alleged despicable act is not entirely clear from the record. Her admitted active participation, on the other hand, clearly established her status as an accomplice as a matter of law.

By his initial ground of error, appellant attacks the sufficiency of the evidence to support the conviction. More specifically, appellant complains that the testimony of the victim was insufficient on the issue of penetration.

The record reflects the following pertinent testimony by the victim relating to the issue of penetration,

Q. What did Ralph do after he got on top of you, N_?

A. He . . . put his private thing in mine.

Q. Okay. Then can you tell what else happened that night? N_, did it hurt when Ralph put his private thing into you?

* * * * * 5ft

A. Yes.

The victim further testified as follows,

Q. You went to school. Okay. At the time — you say — tell me again what Ralph did.

A. He put his private thing in mine.

Q. What does that mean?

A. He had sex with me.

We hold that this testimony alone was sufficient to establish the penetration required in a rape case. See Garcia v. State, 563 S.W.2d 925 (Tex.Cr.App.1978); Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.1978); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Cr.App.1976).

The question before this court is, however, of greater magnitude than a simple sufficiency of the evidence challenge to an isolated element of the offense. Appellant, in his second and third grounds of error, challenges the sufficiency of the corroboration required in this case. In view of appellant’s additional challenge to the lack of corroboration of the only two State witnesses, a sufficiency review may not be had without first addressing the corroboration challenges.

Two articles are relevant to this appeal. Tex.Code Crim.Pro.Ann. art. 38.07 (Vernon 1979), as enacted effective September 1, 1975, provides,

A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim, [footnote omitted].

Tex.Code Crim.Pro.Ann. art. 38.14 (Vernon 1979) provides,

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.

The State argues that the testimony of a victim under Tex.Code Crim.Pro.Ann. art. 38.07 (Vernon 1979), can be corroborated by an accomplice witness, thereby providing the sufficient probative evidence needed to support a conviction. We cannot agree.

Prior to amendment by the Legislature in 1975, Article 38.07, supra, addressed only the offense of seduction. See 1965 Tex. Gen.Laws, ch. 722, § 1, at 466 — repealed by 1973 Tex.Gen.Laws, ch. 399, § 3(b), at 995. Prior law, Tex.Code Crim.Pro. art. 709 (1925) and 1891 Tex.Gen.Laws, ch. 33, § 1, at 34, 10 H. Gammel, Laws of Texas 36 (1898), also addressed the need for corroboration of the victim in seduction cases. Article 709 provided,

Female Alleged to be Seduced — In prosecutions for seduction, the female alleged to have been seduced shall be permitted to testify, but no conviction shall be had upon her testimony unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.

In 1975, the 64th Legislature extended the requirement for corroboration to include a necessity for corroborating the testimony of victims of all sexual offenses under Chapter 21, Penal Code,² without regard to the victim’s age, except in those cases where an outcry is made within six months after the date on which the offense is alleged to have occurred. In doing so, the Legislature sought to treat all victims identically by doing away with need for corroboration when a timely outcry is made to someone other than the defendant.

Under the law as it existed before enactment of the current Article 38.07, minor children enjoyed a favored status and were exempted from the requirement for corroboration of their testimony in those sex offenses where consent was not possible, without regard to timely outcry. Such was not always the case,³ but it appears that the trend evolved toward a favored status through case law. Hohn v. State, 538 S.W.2d 619 (Tex.Cr.App.1976); Carter v. State, 506 S.W.2d 876 (Tex.Cr.App.1974); Williams v. State, 481 S.W.2d 119 (Tex.Cr.App.1972); Uhl v. State, 479 S.W.2d 55 (Tex.Cr.App.1972); Bass v. State, 468 S.W.2d 465 (Tex.Cr.App.1971); Hindman v. State, 152 Tex.Cr.R. 75, 211 S.W.2d 182 (1948); Raifsnider v. State, 146 Tex.Cr.R. 578, 176 S.W.2d 952 (1943); Armstrong v. State, 95 Tex.Cr.R. 107,252 S.W. 777 (1923); Moore v. State, 90 Tex.Cr.R. 604, 236 S.W. 477 (1921). In Hohn v. State, supra, the Court of Criminal Appeals, in one of the last eases to arise outside the scope of present Article 38.07, recognized the pending effective date of the statute and finding it unnecessary to do so, declined to consider whether the prosecutrix’s testimony had been corroborated.

Historically speaking, under the common law, the uncorroborated testimony of an accomplice was sufficient to sustain a conviction. See Hoyle v. State, 4 Tex.Ct.App. 239 (1878), Bailey v. State, 100 Tex.Cr.R. 110, 271 S.W. 627 (1925). It is only by virtue of legislative enactments that an accused may not be convicted of a crime except upon the corroborated testimony of an accomplice. Having enacted such a statute, our Legislature also has the authority to rescind all or any part of it, or to make such rules inapplicable to certain designated offenses. Bailey v. State, supra.

By statutory exception the Legislature has, at different times, dispensed with the need for corroboration. See Gross v. State, 169 Tex.Cr.R. 454, 334 S.W.2d 809 (1960) [practice of dentistry violation]; Lemasters v. State, 164 Tex.Cr.R. 108, 297 S.W.2d 170 (1956) [gaming violation]; Burton v. State, 149 Tex.Cr.R. 579, 197 S.W.2d 346 (1946) [liquor laws violation]⁴; Pope v. State, 114 Tex.Cr.R. 551, 26 S.W.2d 635 (1929) [game, fish and oysters violations]. Other exceptions have been created by the courts, in circumstances in which the proceeding did not subject the accused to a conviction. See Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961) [revocation of probation]; In the Matter of S. J. C., 533 S.W.2d 746 (Tex.) cert, denied 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100 (1976) [juvenile adjudication].⁵

Prior to the amendment to present Article 38.07, a conviction for rape, other than for rape of a minor child (statutory rape), could not be sustained if it was based upon the uncorroborated testimony of a prosecu-trix who failed to make an outcry or prompt report of the rape when there was a reasonable opportunity to do so. Villareal v. State, 511 S.W.2d 500 (Tex.Crim.App.1974); White v. State, 478 S.W.2d 506 (Tex.Cr.App.1972). However, the rule requiring corroboration of the testimony of a victim who fails to promptly report the rape, was applicable only when consent was an issue. Villareal v. State, supra, Hindman v. State, supra. Because statutory rape cases, as a matter of law, involved the inability to consent, the rule was not applied to those cases.

Under the general rule concerning accomplice witnesses, a conviction cannot be based on an accomplice witness’ testimony unless there is additional evidence to connect the defendant with the crime. Article 38.14, supra.

Article 38.07, supra, has been termed an exception to the rule in Article 38.14. Alonzo v. State, 575 S.W.2d 547 (Tex.Cr.App. 1979); Vickery v. State, 566 S.W.2d 624 (Tex.Cr.App.1978). Therefore, if a witness is an accomplice other than the victim, corroboration of his testimony is required under Article 38.14, supra. If, however, the accomplice is also the victim of the offense, or merely the victim without also being an accomplice, Article 38.07 will be invoked if outcry is made within the prescribed period. Once Article 38.07 has been properly invoked, no corroboration of the victim or victim/accomplice’s testimony is required to support a conviction.

In the instant case the child was a victim of the offense but was not an accomplice witness, since she could not legally consent to participation in the act. Her mother was an accomplice under Article 38.14, unaffected by the provisions of Article 38.07.

An accomplice witness has been defined as a person who has been a participant in the crime either before, during, or after its commission. The witness must be subject to prosecution for the offense to be considered an accomplice witness. Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). He is also a discredited witness, because his testimony alone cannot furnish the basis for a conviction. Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269 (1956).

If the witness has been indicted for the offense on trial or implicates himself or herself while testifying, the witness is an accomplice as a matter of law. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977). Where one encourages another to have intercourse with a girl under the age of consent in his presence, each is an accomplice of the other. New v. State, 141 Tex.Cr.R. 536, 148 S.W.2d 1099 (1941). The victim’s mother was an accomplice witness as a matter of law. Hendricks v. State, 508 S.W.2d 633 (Tex.Cr.App.1974).

Once a witness is shown to be an accomplice witness, the next step is to determine if the State has adduced adequate corroborative testimony to sustain a conviction. The test applicable to an appellate court in determining the sufficiency of corroboration is to eliminate the accomplice

testimony from consideration, and then determine if there is other incriminating evidence tending to connect the defendant with the crime. Hernandez v. State, 578 S.W.2d 731 (Tex.Cr.App.1979); Hammonds v. State, 166 Tex.Cr.R. 499, 316 S.W.2d 423 (1958).

The law does not require that all of the facts be corroborated but only that all of the essential facts be corroborated by circumstances or otherwise than by the evidence of the accomplice, and they must be more than merely suspicious circumstances. A chain is no stronger than its weakest link, and if the State must rely on the accomplice’s testimony for some material fact without any corroboration whatsoever, the conviction cannot stand. Almazan v. State, 140 Tex.Cr.R. 432, 145 S.W.2d 576 (1940).

The purpose of Article 38.14 is to prohibit a conviction unless there is some evidence entirely exclusive of that of the accomplice which of itself, and without the aid of the accomplice, tends to raise something more than a mere suspicion of the guilt of the accused. Corroboration is required because of the questionable character of such testimony, since it may be influenced by promise of immunity, or by hope of reward, benefit, or advantage for the witness. Experience has shown that testimony of an accomplice should be viewed with suspicion because it comes from a tainted source. VII J. Wigmore, Evidence 322-325 (3d ed. 1940). There can be no conviction on the testimony of accomplices alone, no matter how many there may be, if their testimony is not corroborated by evidence apart from accomplice testimony. Fields v. State, 426 S.W.2d 863 (Tex.Cr.App.1968); 2 Branch’s Annotated Penal Code 2d 44 and cases collated therein.

The State is not required to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supplies the test. Minor v. State, 108 Tex. Cr.R. 1, 299 S.W. 422 (1927). By eliminating the testimony of the victim’s mother, an accomplice as a matter of law, we are left solely with that of the victim to support the conviction, if it can. But although the child, as the victim of rape, cannot be an accomplice, Soliz v. State, 163 Tex.Cr.R. 508, 293 S.W.2d 662 (1956), Fields v. State, 147 Tex.Cr.R. 540, 182 S.W.2d 815 (1944), Lucas v. State, 86 Tex.Cr.R. 439, 216 S.W. 396 (1919), she nevertheless remains a victim requiring corroboration under Article 38.07 and occupies a status not unlike that of an accomplice. (Compare rape cases pri- or to the present Article 38.07 requiring that the prosecutrix be corroborated as an accomplice where she has failed to make an outcry. Hindman v. State, supra. See also Nemecek v. State, 621 S.W.2d 404 (Tex.Cr. App.1980), which holds that under the present Article 38.07 the type of corroboration needed is the same as that needed under Article 38.14).

Corroboration in the earlier cases was required not because failure to make an outcry connects the victim with the alleged crime [as an accomplice], but because lack of an outcry tends to lessen or diminish the credit to be given her testimony. Hindman v. State, supra; Ex parte Merrill, 150 Tex. Cr.R. 365, 201 S.W.2d 232 (1947). The present Article 38.07 accomplishes the same objective, but applies the benefits and disadvantages to all situations alike. Whether this objective is desirable is not for this Court to say. The law as written is clear, and we ought not change it even if we could. On the contrary, all the members of this Court are sworn to declare it as written. The Legislature alone can change it.

Surely the Legislature envisioned that a child under the age of consent might be the victim of some lecherous scoundrel of the opposite sex of years above hers who would be assisted by the young girl’s natural mother to rob her of her virtue. An outcry under the circumstances might never be made, for surely if it cannot be made to the girl’s own mother because she participated in the dastardly deed, to whom would it be made?⁶ Notwithstanding such presumed knowledge, the Legislature undertook to apply Article 38.07 across the board to all offenses under Chapter 21 of the Penal Code. It is not for this Court to ignore the plain meaning of the law, to attempt to rewrite the statute or to turn our vision away from the facts of the case because the inevitable strikes us as distasteful. We have already noted that the Legislature has tended, since the enactment of Article 38.-07, supra, to extend the requirement of corroboration of accomplices to other areas of the law.⁷

Viewing the State’s evidence under the test set out in Hernandez v. State, supra, all that remains is the testimony of the victim requiring corroboration and with nothing to supply that corroboration. The defense did call to the stand a physician who had examined the victim about ten months after the alleged incident. His testimony, however, in no way provided the independent corroboration required in this case. He testified that the victim’s vagina was very pliable and like that of an adult female. He could not determine from the examination whether the dilation had resulted from intercourse or from use of tampons. The victim had told him that she had been using tampons for about three months prior to the examination. According to the doctor, the victim’s vagina was like “that of college girls who haven’t had intercourse but used tampons.” The doctor’s testimony on the issue of penetration was that

[T]here’s no way that I can tell, you know, just by looking, whether or not that that’s been dilated either through intercourse or through a tampon, but if — you know, it had been dilated.

Q. She was using tampons at that time?

A. Right.

Q. Okay. Based on your experience and medical opinion and evidence, can you tell if she had intercourse at that time?

A. No.

Q. You cannot tell if she had been penetrated or not?

A. No.

This medical testimony in no way corroborates either the victim or the mother because it reinforces doubt rather than supports a finding of intercourse.

In the absence of corroboration of either the victim or the accomplice, the evidence is insufficient to support appellant’s conviction and we so hold. Under the holdings in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979), and Ex parte Colunga, 587 S.W.2d 426 (Tex.Cr.App.1979), appellant is entitled to an acquittal.

In reaching our conclusion, we have done so with some reluctance and only after satisfying ourselves that no other disposition of the case can be made without doing violence to the intent of the Legislature and firmly established principles of law. To deviate from them, in our opinion, would be more detrimental to the public interest than a reversal of the judgment. Almost half a century ago Judge Beauchamp, speaking for the Court of Criminal Appeals in Alma-zan v. State, supra, addressed the same dilemma facing this court now:

It is unfortunate that designing criminals sometimes so lay the scene of their activities that there is great difficulty in proving their guilt, and more unfortunate still is it that frequently the State is not able to do so, but such is no argument in favor of a rule which would permit the conviction of innocent people on the testimony of a party or parties involved in the crime, or that reliance may be had on, ‘the finger of suspicion.’ For the purpose of corroborating testimony which is considered too unreliable to take human liberty, something stronger is required than mere suspicion. This court has always so held.

For the foregoing reasons, we reverse and reform the judgment to reflect an acquittal. Greene v. Massey, supra; Burks v. United States, supra.

1 . Section 21.09. Rape of a Child.

(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.

2 . Chapter 21 includes: § 21.02 Rape, § 21.03 Aggravated Rape, § 21.04 Sexual Abuse, § 21.-05 Aggravated Sexual Abuse, § 21.06 Homosexual Conduct, § 21.07 Public Lewdness, § 21.08 Indecent Exposure, § 21.09 Rape of a Child, § 21.10 Sexual Abuse of a Child, and § 21.11 Indecency with a Child.

3 . See Gazley v. State, 17 Tex.Ct.App. 267 (1884); Ayres v. State, 104 Tex.Cr.R. 329, 283 S.W. 828 (1926).

4 . The Legislature restored the need for corroboration in 1979. See Tex.Alc.Bev.Code § 101.-06. (Vernon Supp.1981).

5 .The Legislature added the need for corroboration in 1979. See Tex.Fam.Code Ann. § 54.-03(e) (Vernon Supp.1981), effective August 27, 1979; see also In the Interest of A. D. L. C., 598 S.W.2d 383 (Tex.Civ.App.—Amarillo 1980, no writ).

6 . The record reflects a claim by the victim that she wrote a letter to her aunt informing her of the incident made the basis of the prosecution. The letter was not produced, the record is silent as to the date of the letter and the aunt did not testify nor was her absence explained to the court. Since the victim’s testimony cannot be corroborated with her own statement, written or oral, made to a third person, see Brown v. State, 167 Tex.Cr.R. 352, 320 S.W.2d 845 (1959); Pipkin v. State, 154 Tex.Cr.R. 640, 230 S.W.2d 221 (1950), the testimony of the missing aunt was critical to the State’s case if the victim’s outcry was to be established within the statutory period. The non-testifying aunt’s missing testimony is reminiscent of the situation presented in Black v. State, 109 Tex.Cr.R. 2, 2 S.W.2d 459 (1928).

7 . See footnotes 4 and 5, supra.