Brown v. State, 63688

• Decision Date: 13 July 1983
• Docket Number: No. 63688,No. 1,63688,1
• Parties: Thomas Gerald BROWN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 117

657 S.W.2d 117

Thomas Gerald BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 63688.

Court of Criminal Appeals of Texas,

Panel No. 1.

July 13, 1983.

Rehearing Denied Oct. 12, 1983.

Dean White, J. Patrick Spruiell, Canton, for appellant.

Richard Davis, Dist. Atty., Canton, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

McCORMICK, Judge.

Appellant was convicted of incest. Punishment, enhanced by two prior felony convictions, was assessed at life.

L______ M______ testified that around 6:00 a.m. on February 16, 1978, her husband had just left for work. While L______ M______ was getting a bottle for her baby, her father, the appellant, entered the house. When L______ M______ asked appellant what he was doing there, he replied that his truck had broken down. L______ M______ told appellant that she did not believe him. Appellant then told L______ M______ she knew why he was there and he came toward her and grabbed her shoulders. He then pushed L______ M______ down on the couch and unzipped his pants. L______ M______ testified she began hitting appellant and trying to get up. Appellant then told L______ M______ that he would kill her husband if she did not comply. L______ M______ continued to resist until appellant grabbed her hands, held them together and pulled her panties down. He then forced her to have sexual intercourse with him.

In his first two grounds of error, appellant specifically challenges the sufficiency of the corroboration of the complainant's testimony. He contends that the complainant was an accomplice witness as a matter of law whose testimony must be corroborated in order for the evidence to be sufficient. At trial, appellant requested that the jury be instructed that the complainant was an accomplice as a matter of law. The trial court denied appellant's requested instruction and submitted the issue to the jury as a question of fact.

The general rule is that a female who consents to or voluntarily enters into an incestuous intercourse is an accomplice witness. Bolin v. State, 505 S.W.2d 912 (Tex.Cr.App.1974). Conversely, if the incestuous intercourse is compelled by force, threats, fraud or undue influence, the victim is not an accomplice witness. Bolin v. State, supra. If the victim is found to be an accomplice witness, then there must be other evidence tending to connect the accused with the offense. Article 38.14, V.A.C.C.P. If there is no such corroboration, the evidence will be deemed insufficient to support the conviction.

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, her testimony need not be otherwise corroborated, and the evidence connecting appellant with the acts of intercourse is sufficient. Appellant's ground of error two is overruled.

Since L______ M______ is not an accomplice witness, the trial court did not err in failing to instruct the jury that L______ M______ was an accomplice witness as a matter of law. Appellant's first ground of error is overruled.

In his third ground of error, appellant complains about the admission of extraneous offenses, specifically prior incestuous offenses as well as the offense of unlawfully carrying a weapon. This dual allegation of error under one ground constitutes a multifarious ground of error and fails to preserve error under Article 40.09(9), V.A.C.C.P. Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979). However, we will address appellant's contentions.

At trial, L______ M______ testified that appellant had forced her to commit prior incestuous acts with him.

"The sexual passion or desire of X for Y is relevant to show the probability that X did an act realizing that desire. On the principle set out above, this desire at the time in question may be evidenced by proof of its existence at a prior or subsequent time. Its existence at such other time may, of course, be shown by any conduct which is the natural expression of such desire. Thus, in prosecutions for adultery, incest, seduction, rape, and rape under age of consent, prior or subsequent acts of intercourse or other acts of familiarity between the parties are admissible to show the probability of the offense. The fact that the intercourse or other conduct is a separate criminal offense does not affect the admissibility of the evidence. (footnotes omitted)." McCormick & Ray, Texas Law of Evidence (3rd Edition 1980) Section 1535, pages 236-237.

Until the decision in Johns v. State, 155 Tex.Cr.R. 503, 236 S.W.2d 820 (Tex.Cr.App.1951), the question of the admission of such acts was unsettled. However, in Johns, all cases holding that such acts were inadmissible were overruled. We continue to adhere to the decision made in Johns v. State, supra. Thus, the trial court acted properly in admitting evidence of prior incestuous acts.

L______ M______ testified that appellant threatened to kill her mother and sisters if she told anyone about the incestuous acts. Thereafter, the following occurred:

"Q. (Prosecutor) Did you ever see him with a gun?

"A. Yes, sir.

"THE DEFENSE: Object to that. Extraneous offense, also if it is, indeed, an offense.

"THE COURT: Overruled."

L______ M______ then proceeded to describe the gun and the fact that appellant always carried the gun with him. When asked if she ever saw him threaten anyone with it, she answered affirmatively. All of this came into evidence without an objection from appellant. The State argues that this evidence was offered to explain why L______ M______ had not made a prompt outcry.

"It must be remembered that the conduct of the accused showing a consciousness of guilt, such as the suppression of the testimony of a witness, would be admissible as a circumstance tending to prove that he committed the act with which he is charged. Love v. State, 35 Tex.Cr.R. 27, 29 S.W. 790; Savage v. State, 75 Tex.Cr.R. 213, 170 S.W. 730; Maddox v. State, 163 Tex.Cr.R. 5, 288 S.W.2d 780 .... 'The defendant or any other witness is entitled to explain any fact tending to create a distrust of his integrity of truthfulness.' Branch...