Hernandez v. State

• Decision Date: 09 June 1988
• Docket Number: No. A14-87-184-CR,A14-87-184-CR
• Citation: 754 S.W.2d 321
• Parties: Joe Frank HERNANDEZ, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 321

754 S.W.2d 321

Joe Frank HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. A14-87-184-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

June 9, 1988.

Scott Ramsey, Houston, for appellant.

John B. Holmes, Jr., Linda A. West, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

A jury convicted Joe Frank Hernandez [Hernandez] of violating section 22.011(a)(2)(A) of the Texas Penal Code by sexually assaulting a child between the ages of fourteen and seventeen. The court assessed his punishment at confinement in the Texas Department of Corrections for eight years.

Hernandez asserts four grounds of error: First, that the trial court erred in refusing to submit to the jury evidence regarding the promiscuity of the complaining witness before the indicted offense; second, that the trial court erred in not finding that the evidence established the defense of promiscuity as a matter of law under TEX.PEN.CODE § 22.011(d)(1) (Vernon Supp.1988); third, that the trial court erred in admitting into evidence a photograph depicting him nude with an erection; fourth, that the trial court erred in admitting evidence of extraneous offenses. We reverse, sustaining points one, three, and four.

In addition to the brief that counsel filed, Hernandez has filed a pro se brief with this court. No right to hybrid representation exists in Texas. Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App.1981); Normand v. State, 686 S.W.2d 275, 279 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd). Appellant's pro se brief presents nothing for review. We have, however, examined the contentions in the pro se brief and find no error we should consider in the interest of justice.

The complainant once lived in San Antonio next door to Hernandez. At the time, he was approximately sixty-seven years old. The complainant lived there from the time she was approximately eleven years old until she was thirteen. During this period, Hernandez acquainted himself with the complainant and her family. The family moved to Pocohantas, Arkansas when the complainant was thirteen. Two or three years later, the complainant's parents and her fourteen year old half sister, Evelyn, drove to San Antonio. The girls' parents allowed Evelyn to stay with Hernandez, ostensibly so he could buy her some clothes. The complainant testified Evelyn telephoned her mother, and that she overheard her sister saying "[t]hat it hurt, to send Barb down." Afterward, the girls' mother told the complainant that she was to go and stay with Hernandez to "get some clothes." When the complainant's mother sent her to San Antonio to stay with him, Hernandez paid for the plane ticket.

After she arrived, Hernandez had her try on her sister's clothes in front of him to "see how they looked." The complainant testified Hernandez had her change clothes in front of him, stripping down to her panties and brassiere in the process. After complimenting her upon the way Evelyn's clothes looked on her, and after her sister had left the room, Hernandez approached the complainant, put his hands on her body, and informed her that she was going to sleep with him that night. She threatened to tell her mother, but Hernandez said her mother already knew. She testified she did not resist his sexual advances because her mother had "set it up with him." Hernandez' attorney took the complainant on voir dire to challenge her personal knowledge that her mother had "set it up." She explained that her mother had bargained with Hernandez before sending the complainant to visit him the first time. After Evelyn had called to say "it hurts," the complainant had overheard her mother telling Hernandez, "if [the complainant] was to go down there, he was to get [her] some clothes." The next morning, he gave her a short black and orange nightgown out of his closet. He had her wear the nightgown around the house. During his relationship with her he gave her several other outfits.

At trial, Evelyn denied the girls had disrobed in front of Hernandez and denied either girl had slept with him. Hernandez paid for plane tickets on three or four weekends so the complainant could travel to and from Arkansas. He continued to have her wear the black nightgown with orange lace around his house. Once, the complainant testified, Evelyn accompanied her to San Antonio, and he slept with both girls. The last time the complainant spent the weekend with Hernandez, in San Antonio a short, heavy set "Mexican" man came to Hernandez' house. The complainant testified that Hernandez offered her to the man for one hundred dollars. Hernandez sent the complainant and the man to her bedroom where they copulated. A man named Max came to Hernandez' house the same day. The complainant heard Hernandez offer her to Max for a hundred dollars. Hernandez sent them to her room to copulate. She performed orally upon the man's penis, but after sodomizing her the man could not penetrate her vagina with his penis. The complainant testified she did not object to the sexual abuse because she was afraid her mother would ground her or beat her. She had spoken to her mother about the sexual assaults, including oral sodomy, and her mother had continued to send her to Hernandez. Her mother told her it was "to pay the bills." Hernandez was giving her mother money from time to time. Throughout the trial, the complainant testified she was very much afraid of her mother. She testified her mother had hit her in the head with her hand, injuring the hand. In addition, she testified that scars on her head had resulted from her mother hitting her in the head two or three times with an iron skillet. She also testified Hernandez had also spanked her once because she could not figure out how to use the dust buster, a vacuum that had only recently come out on the market.

A week or two after her last weekend visit with Hernandez, the complainant's family moved back to San Antonio. The complainant and her sister lived with Hernandez. Their parents lived down the street about a block away. The complainant testified Hernandez was selling both girls' sexual favors to men. He also took nude pictures of the complainant.

Hernandez moved to Houston in late 1985. The complainant's mother made her quit school and go to live with Hernandez in his one bedroom apartment. While she stayed with him in Houston, Hernandez had sexual intercourse with the complainant. She testified Hernandez also brought home a Pekinese puppy. He made the Pekinese "use his mouth" on the complainant's vagina. Other men also visited the apartment.

Several days before the complainant escaped from the apartment, a short, fat, elderly black man came to the apartment. Hernandez made the complainant sit in the man's lap in her orange and black lingerie. Hernandez and the man discussed a trade in which Hernandez would get a parking lot for his restaurant, and the complainant was to "be with" the man for five years. Hernandez sent her to the bedroom, where she had sexual relations with the man. Hernandez also brought home a woman named Anita several days before the complainant escaped. He had visited Anita at her mobile home in the past in order to "check on his oil wells." After Hernandez had sold the complainant, Anita moved into the apartment and slept with Hernandez. The complainant slept in the living room. The complainant testified she had not left Hernandez' apartment before this time because she had no money, she would be locked out, she knew no one in Houston, and she thought Hernandez would find her before she got far. However, she testified she was afraid and cried because she had been sold to the elderly black man and "he was so big" she did not know what to do. On the night of February 12, 1985, while Hernandez was at work, the complainant went out of the apartment to a pay telephone. Anita remained in the apartment to let the girl back in when she pressed the telephone code at the security door. The complainant phoned her grandmother in Michigan. Her grandmother gave her the unlisted telephone number of an aunt who lived in Conroe. After about an hour, her aunt picked her up at 5600 Fannin. The complainant's aunt took her to the apartment to pick up her clothes and the Pekinese puppy. Then her aunt took her to Conroe. The next morning, the complainant called the police.

A grand jury indicted Hernandez as follows:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, JOE FRANK HERNANDEZ hereafter styled the Defendant, heretofore on or about February 8, 1985, did then and there unlawfully intentionally and knowingly cause the penetration of the vagina of ... the Complainant, a person younger than seventeen years of age and not his spouse by placing his sexual organ in the vagina of the Complainant. AGAINST THE PEACE AND DIGNITY OF THE STATE.

The trial court refused to admit evidence the complainant had been promiscuous before the date of the indicted offense. The complainant's half sister testified outside the hearing of the jury that the complainant had engaged in sexual relations with several boys before the date of the indicted offense. She testified to seeing the complainant once naked in a trailer at Hernandez' ranch on top of a teenage boy. She also testified to seeing the complainant naked in a pickup truck, in Arkansas, beneath another boy who wore only a pair of undershorts around his knees. She testified to seeing the complainant naked on top of another boy at his house in San Antonio. She further testified that the complainant had told her about being "in bed with" and "messing around and stuff" with the brother of the boy she had slept with at Hernandez' ranch. The complainant testified she had engaged in sexual relations with two of the boys more than once, but indicated she had done so with one...