Griffin v. State

• Decision Date: 09 October 1974
• Docket Number: No. 48832,48832
• Citation: Griffin v. State, 514 S.W.2d 278 (Tex. Crim. App. 1974)
• Parties: Clark R. GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 278

514 S.W.2d 278

Clark R. GRIFFIN, Appellant, v. The STATE of Texas, Appellee.

No. 48832.

Court of Criminal Appeals of Texas.

Oct. 9, 1974.

Gerald T. Calhoun, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Robert Ross, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for assault with intent to rape. After the jury returned a verdict of guilty, punishment was assessed by the court at five (5) years.

At the outset appellant contends the evidence is insufficient to support the conviction.

The record reflects that the eight-year-old prosecutrix ¹ was taking a nap in the front room of her home in Houston about 1:00 p.m. on July 3, 1972. Her mother, who worked at night, was asleep in another part of the house. Appellant, described by prosecutrix as a friend of the family, came to the front door, rang the doorbell, and told prosecutrix to let him in. Prosecutrix advised appellant that her mother had told her not to open the door. After appellant continued in his request, the prosecutrix opened the door for him.

According to prosecutrix, appellant 'went in to see if my mother was asleep.' Appellant returned to the front room, smoked a cigarette, and approached prosecutrix, who was lying on the floor, and pulled prosecutrix' shorts and underpants down. Appellant unzipped his pants, spread prosecutrix' legs, and put his finger in her 'front' and 'back' private parts. The prosecutrix described appellant's position as 'laying on me' and 'over me.' The mother of the prosecutrix entered the room and testified that she observed the following:

'I saw him (appellant) leaning over . . . (prosecutrix) with everything she had--she had shorts and panties pulled down over her left ankle of one leg and her legs spread apart and he was back down over her like this. . . . He had his hands on her hips. . . . He saw me. . . . He got up and zipped his pants up. . . .'

Prosecutrix stated that before her mother entered the room she tried to yell and appellant 'covered my mouth up.'

One who handles or takes hold of the person of a female under the age of consent, with the present intent of having carnal knowledge of her, then and there, either with or without her actual consent, is guilty of an assault with intent to rape. Melton v. State, Tex.Cr.App., 442 S.W.2d 687; Steptoe v. State, 134 Tex.Cr.R. 320, 115 S.W.2d 916.

The intent or purpose of appellant must be determined by the trier of the facts from appellant's conduct, in light of the facts and circumstances shown. In doing so, the trier of the facts has the right and duty to consider the experience of mankind. Willis v. State, Tex.Cr.App., 473 S.W.2d 200.

Appellant urges that no testimony was introduced relative to words spoken which would evidence an intent to rape and that there was no evidence that appellant's penis was ever removed from his pants.

The record reflects the following occurred on cross-examination of the mother of the prosecutrix:

'Q. (Appellant's counsel) In the meantime, could you see his privates exposed or did you see his privates exposed?

'A. I don't remember.

'Q. You don't remember seeing it?

'A. No.

'Q. So then, you would conclude that he was trying to rape your daughter because he had his arms on her and pulling her up to him?

'A. He had already--he was, in fact, he was in the process of doing--raping her then. He had her clothes off. And the odor--and his pants unzipped and his position.

'Q. But you didn't see his privates exposed?

'A. I don't remember seeing his privates exposed.'

The fact that there was no attempted penetration and rape is not determinative of intent as the offense is completed when there is an assault with intent to commit rape. McBrayer v. State, Tex.Cr.App., 504 S.W.2d 445; Jaffrion v. State, Tex.Cr.App., 501 S.W.2d 322. The appellant was in a position to have completed the act of rape. If he were frustrated in the completion of the act by the presence of the mother of the prosecutrix this would be no defense. McBrayer v. State, supra; Willis v. State, supra. We conclude that the facts and circumstances shown are sufficient to find that the appellant had the present intent to complete the offense and that the evidence supports the conviction.

Appellant contends the court committed fundamental error when it failed to inquire into the victim's competence to testify 'when the testimony of the nine-year-old witness on its face established she did not possess sufficient intellect to relate the transactions with respect to which she was interrogated.'

In Carr v. State, Tex.Cr.App., 475 S.W.2d 755, where the competency of a nine-year-old witness was challenged for the first time on appeal, this Court said:

'Usually, the competence of a witness is waived when she is permitted to testify without objection. English v. State, 170 Tex.Cr.R. 56, 338 S.W.2d 446. Unless a child's testimony shows on its face that he or she was incompetent to testify complaint as to her testimony raised for the first time on motion for new trial or on appeal comes too late. Dubois v. State, 164 Tex.Cr.R. 557, 301 S.W.2d 97, cert. den. 356 U.S. 921, 78 S.Ct. 705, 2 L.Ed.2d 717. See also 4 Branch's Ann.P.C., 2d Ed., Sec. 1945, p. 264.'

In the instant case appellant urges that even in the absence of an objection to the competency of the nine-year-old prosecutrix, the court should have inquired into her competence to testify in view of her testimony.

Appellant points to the testimony of prosecutrix where she was unable to give her correct address and repeated a mistaken address on...