Esquivel v. State

• Decision Date: 13 March 1974
• Docket Number: No. 47106,47106
• Citation: 506 S.W.2d 613
• Parties: Amado R. ESQUIVEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 613

506 S.W.2d 613

Amado R. ESQUIVEL, Appellant, v. The STATE of Texas, Appellee.

No. 47106.

Court of Criminal Appeals of Texas.

March 13, 1974.

C. David Evans, San Antonio, (Court appointed on appeal only), for appellant.

Ted Butler, Dist. Atty. Gordon Armstrong, Bill Harris, Charles Felder and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

CORNELIUS, Commissioner.

The conviction was for rape by force and threats. Punishment was set at five years' confinement.

The State produced evidence that on the night of the offense the prosecutrix and a female companion went to a bar in Bexar County. While they were there they saw appellant in the company of several other men and were approached several times by one of the men. The men also followed the women to their car when they were leaving and asked where they were going. The women did not answer but started the car and left, proceeding on Highway 81. Sometime later they noticed a car following them and approaching rapidly. The car eventually forced the prosecutrix to drive her car off the road. The women tried to escape by backing their car away from the other car, but they were forcibly pulled from their automobile by five men who were in the other car. The men were the same men who had been seen by the women earlier at the bar, and included the appellant. The five men forced the women to go with four of the men in one car, while one of the men drove the prosecutrix's car away from the scene. After considerable driving, the women were taken to a plowed field, where three of the men sexually assaulted the prosecutrix by the use of force and threats against her life. She testified that appellant was one of the three men who assaulted her, and that he had a machete with him which he threatened to use to kill her if she tried to escape.

The appelant denied having had any relations whatever with the prosecutrix or her companion. He voluntarily took the stand and testified that, although he had seen the prosecutrix earlier on the night in question, he was not one of the men who participated in the abduction or rape. He further testified that he had seen a car earlier that evening in which there were five 'wet-backs' who he supposed might be the guilty parties. His testimony, including that concerning his whereabouts and activities on the night in question, was corroborated by several other witnesses.

We first consider Ground of Error No. 15 because it challenges the sufficiency of the evidence to sustain the conviction. The main basis of this ground is the contention that the testimony of the prosecutrix indicated that one of the men (not the appellant) was reluctant to have intercourse with her, but said that '. . . he had to or the other men would get' him and that the prosecutrix seemed insulted at the man's reluctance. In addition, appellant asserts that the overall testimony cast great doubt upon the reliability and credibility of the prosecutrix. In spite of these contentions, however, the prosecutrix positively testified that the appellant was one of the men who forcibly pulled her out of her car, who helped two other men push her into the bushes, who approached her with a machete, and by force and threats had intercourse with her without her consent, threatening to kill her if she tried to escape. Portions of her testimony were substantially corroborated by several other witnesses.

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Art. 36.13 and Art. 38.04, Vernon's Ann.C.C.P.; Brown v. State, Tex.Cr.App., 477 S.W.2d 617. The jury may believe some witnesses and refuse to believe others and it may accept portions of the testimony of a witness and reject other portions. The jury here obviously chose to believe the State's testimony. Viewing the evidence in the light most favorable to the verdict, as we must (Jones v. State, Tex.Cr.App., 442 S.W.2d 698, certiorari denied, 397 U.S. 958, 90 S.Ct. 967, 25 L.Ed.2d 143), it is sufficient to support the jury verdict.

Included as a part of the argument under Ground of Error No. 15 is a contention that the trial court should have allowed the appellant to attempt to prove by the witness Purvis that the prosecutrix had had sexual relations with many men and was a person of loose morals who probably did not resist her attackers. This contention is not properly presented in the briefs, but in the interest of justice it will be considered.

When consent is not an issue, neither evidence of general unchastity on the part of the prosecutrix nor evidence of specific instances of unchastity, except with the defendant, is admissible. Roper v. State, Tex.Cr.App., 375 S.W.2d 454; Tyler v. State, 145 Tex.Cr.R. 315, 167 S.W.2d 755; Branch's Anno. Pen. Code 2d Ed. Vol. 4, Sec. 1961. The issue of consent was not raised here. The appellant took the stand and testified. He did not claim consent, but he simply denied even being present or having had any act of intercourse at all with the prosecutrix. The issue of consent is not raised merely by a plea of not guilty. Roper v. State, supra. Ground of Error No. 15 is overruled.

In his Grounds of Error Nos. 1 through 4, the appellant contends that the State failed to sustain its burden of proof as to venue. Concerning venue, the prosecutrix testified initially that the offense occurred in Bexar County. Later, she said she didn't know for sure if it was in Bexar County, but that it did occur near Benton Road. Officer Olivares testified that the prosecutrix took him out on Benton Road, and that it was determined that the offense occurred at a point in a plowed field near Benton Road. He further testified that Benton Road is entirely in Bexar County. The prosecutrix testified that she and her companion were forced into the attackers' automobile on Benton Road, and that they 'drove and drove' and eventually were taken to the plowed field where the offense occurred. She also said that when they left to go off the road into the plowed field the road was rocky and graveled, as the testimony showed Benton Road to be.

According to the principles announced in Phillips v. State, Tex.Cr.App., 459 S.W.2d 632, this testimony was sufficient to support the jury finding that the offense occurred in Bexar County. Venue in a criminal case need not be proved beyond a reasonable doubt, but only by a preponderance of the evidence. Curtis v. State, Tex.Cr.App., 321 S.W.2d 587; King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501; 24 Tex.Jur.2d 418; Phillips v. State, supra.

In Ground of Error No. 5 the appellant asserts that the court erred in allowing the prosecution to ask the prosecuting witness the question, '....