Dickinson v. State, 05-83-00101-CR
| Decision Date | 13 January 1984 |
| Docket Number | No. 05-83-00101-CR,05-83-00101-CR |
| Citation | 667 S.W.2d 576 |
| Parties | Russell Kent DICKINSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Arch McColl, Bruner, McColl, McColloch & McCurley, Dallas, for appellant.
Henry Wade, Dist. Atty., Anne Wetherholt, Asst. Dist. Atty., for appellee.
Before AKIN, VANCE, and ROWE, JJ.
This appeal is from a conviction for rape of a child for which the appellant was assessed a twenty-year sentence. The appellant contends that the evidence is insufficient to support his conviction because there is insufficient evidence to prove that sexual intercourse actually occurred and that the trial court erred in overruling objections to comments by the prosecutor on the appellant's failure to testify. Because appellant's contentions are without merit, we affirm.
The victim in this case was a nine-year-old who had an I.Q. of 35. The trial court ruled that her intelligence was so limited that she was incompetent to testify. Thus, the State was unable to present direct testimony by the victim that sexual intercourse had occurred. The basis of the appellant's first contention is that the State failed to present sufficient circumstantial evidence to prove penetration occurred. We disagree.
Sexual intercourse is defined by TEX.PENAL CODE ANN. § 21.01(3) (Vernon 1974) as: "Any penetration of the female sex organ by the male sex organ." Proof of the slightest penetration is sufficient to sustain this element of the offense of rape and penetration may be proved by circumstantial evidence. Luna v. State, 515 S.W.2d 271, 273 (Tex.Cr.App.1974). The standard for review in circumstantial evidence cases was outlined in Wilson v. State, 654 S.W.2d 465, 471 (Tex.Cr.App.1983) (On Rehearing) (en banc ) as follows:
It follows that circumstantial evidence should not be tested by an ultimate "standard for review" different from direct evidence; the standard in both kinds of cases is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
We conclude that the evidence presented was sufficient to show sexual penetration beyond a reasonable doubt.
The complainant's mother, her twelve-year-old brother, and a fourteen-year-old male family friend testified that they viewed appellant lying, face to face, on top of the complainant. The appellant's pants were pulled down to his ankles and the complainant's swim suit was also pulled down to her ankles. All three witnesses stated that the appellant's body was moving up and down while he was on top of the complainant. The complainant's mother stated that it appeared to her that the appellant was having sexual intercourse with her daughter. However, a companion of the appellant on this occasion testified that when he and the other three witnesses came upon the complainant and appellant, the appellant was standing over the complainant with his pants raised and fastened.
The testimony of the physician who examined the complainant soon after the incident and of the forensic technician who analyzed the specimen taken by the physician also were introduced. Both of the witnesses stated that in their opinion the complaining witness had recently had sexual intercourse. The basis of this opinion was the amount of and depth at which sperm and seminal fluid were detected in the complainant's vaginal cavity. On cross-examination the appellant attempted to impeach these opinions by questioning these expert witnesses on whether the presence of sperm and seminal fluid could not be explained by drainage if the appellant had ejaculated outside the complainant's body. Both witnesses discounted this possibility. Based on the evidence of the appellant's actions when discovered with the complainant, and the physical evidence indicating sexual intercourse, we conclude that the evidence is sufficient to prove that appellant had sexual intercourse with the complainant.
The appellant next contends that, during the following sequence, the prosecutor commented on his failure to testify:
And you know, another pretty important evidence that you can consider is what you've observed in this courtroom. The demeanor in this courtroom of this man right here. You know, when [the complainant] was led into that courtroom she hid her face. She hid her face in shame.
The basis of appellant's contention with respect to these arguments is that remorse, shame, or pity could be communicated to the jury only through his testimony. We disagree and hold that the comments directed the jury's attention only to the appellant's demeanor in court and not to the absence of his testimony.
In order for a comment to be considered erroneous it must:
when viewed from the jury's standpoint, ... be manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify.... It is not sufficient that the language might be construed as an implied or indirect illusion.... If the remark called the jury's attention to the absence of evidence that only the testimony of the defendant could supply, the implication as a comment on the defendant's failure to testify is a necessary one and the conviction must be reversed. Banks v. State, 643 S.W.2d 129, 134 (Tex.Cr.App.1982). [Emphasis Added]
The prosecutor in this case specifically pointed the jury's attention to ...
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Good v. State
...as he did in this cause he may also have been relying upon a recent decision by the Dallas Court of Appeals, see Dickinson v. State, 667 S.W.2d 576 (Tex.App.--Dallas 1984), which had relied upon this Court's decision of Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), as authority for hol......
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...or "pity" towards or for his victim was an impermissible comment on the appellant's failure to testify. See Dickinson v. State, 667 S.W.2d 576 (Tex.App.--Dallas 1984). Because we find that the court of appeals erroneously decided appellant's contention, we will reverse its Appellant was con......