Jackson v. State

• Decision Date: 14 April 1965
• Docket Number: No. 38153,38153
• Citation: 388 S.W.2d 935
• Parties: David Marvin JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 935

388 S.W.2d 935

David Marvin JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 38153.

Court of Criminal Appeals of Texas.

April 14, 1965.

Chappell & McFall, by John R. McFall, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The offense is sodomy; the punishment, confinement in the state penitentiary for 15 years.

The state's case consisted of testimony adduced from Don Lees, who was shown to be 15 years of age at the time of the commission of the offense. This witness testified that an act of oral sodomy was committed on him by the appellant at a private residence in Lubbock, Texas, about two weeks before school was out 'last year'. The witness, Lees, was a student in junior high school at the time, and he was accompanied by the witness, Mike Hyman, to the home of appellant on the occasion when the act of sodomy was committed upon him. Lees' testimony reflects that he and Hyman arrived at appellant's house at approximately 11:00 A.M. and drank malt liquor from about 12:00 o'clock to 3:00 o'clock and that he then went into a bedroom 'to lay down, I was tired'. This witness further testified that appellant came into the room approximately five minutes later and that the witness Lees was lying on the bed and that appellant came over and sat down on the bed and that the two of them looked at some books which apparently were pornographic in nature. The appellant thereafter fondled the sexual parts of Lees for approximately five minutes, and appellant then unzipped the pants of the witness, Lees. Lees testified that he tried to get up but that appellant pulled him back onto the bed and that the appellant thereafter took off the pants and underclothes of Lees, but Lees himself then took off his shoes. Lees testified that appellant then committed an act of oral sodomy upon him and that after said act was committed that he and appellant lay on the bed for approximately five minutes and Lees then dressed by himself and left the room and appellant came out of the room sometime later. Lee's testimony reflects that there was no force or threats exerted upon him either before, during or after the act of sodomy and that he had gone to appellant's house voluntarily on the date that the act was committed and that he had thereafter gone back to appellant's house some nine or ten times and had in fact on one occasion gone in a bedroom and retired while appellant was present in the house. Lees' testimony further reflects that on the occasion of the alleged act of sodomy there were other people present in the house but that the witness Lees did not complain to or inform any of the people in the house as to what happened in the bedroom and that he did not call for help nor make an outcry during the act, nor did he struggle with appellant, and he further testified that he knew what he had done was wrong. He did not report the act to anyone until approximately July 14, 1964, approximately two months after the occurrence. Lees testified that on July 14, 1964, he signed a voluntary statement for the juvenile officer of Lubbock County, Jim T. Brown. This statement is in evidence as an exhibit, and it reflects, along with Lees' testimony, that there is no mention of an act of sodomy having been committed upon Lees by appellant. Lees testified that he was drunk at the time the act was committed upon him. 'I couldn't have done too much struggling', he related. He further stated that if he had wanted to get up he didn't know whether he could or not, 'I couldn't say.' Lees testified that if he had not been drunk he would not have allowed appellant to do that to him. Lees further testified that he remained at appellant's house around 1 1/2 or 2 hours longer after the act of sodomy had been committed, and that he drank some more malt liquor. He and Hyman left appellant's house around 6:00 P.M.

The state also adduced testimony from Jeffrey Steven Turner and Mike Hyman, who testified to having been to appellant's house and drinking malt liquor but neither of them corroborated the testimony of the witness, Lees, as to the commission of the act of sodomy as alleged.

Appellant's able counsel urge that the trial court erred in not finding that the witness, Lees, was an accomplice witness as a matter of law. The state contends that under the facts of this case the witness, Lees, was not an accomplice as a matter of law, and the trial court properly left that fact issue for the jury's determination. It is the state's contention that the trial court properly submitted the issue to the jury as to whether or not Lees was an accomplice, and the state says that the jury's findings of guilt found that Lees was not an accomplice. Appellant relies upon Pipkin v. State, 154 Tex.Cr.R. 640, 230 S.W.2d 221; Gottschalk v. State, 157 Tex.Cr.R. 276, 248 S.W.2d 473; Hinson v. State, Tex.Cr.App., 211 S.W.2d 750; Gallager v. State, 131 Tex.Cr.R. 254, 97 S.W.2d 954 and Medis v. State, 27 Tex.App. 194, 11 S.W. 112, to sustain his position. The state relies upon Huggins v. State, 168 Tex.Cr.R. 302, 325 S.W.2d 144 in support of its contention, and also upon Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73. The state points out that Huggins, supra, was decided subsequent to Pipkin, supra, and the state assumes the unique position that Huggins 'implicitly overruled Pipkin.' The state also points out that the rule in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, might be relied upon to distinguish Huggins from the instant case.

Now that we have before us all of the authorities relied upon and cited us by both parties, we shall address ourselves to these various cases in order to reach a proper disposition of this case.

In Pipkin v. State, a sodomy case from El Paso, Schuster, the 14 year old boy and a junior in high school testified that he said "Scoot down' and I scooted down' * * * The trial court there had the view that if Schuster did not consent to the act of sodomy he would not be an accomplice and a conviction could be had upon his uncorroborated testimony. The trial court instructed the jury if they believed Schuster consented to the act, they would acquit appellant. The state contended that the jury's finding of guilt in the face of such an instruction constitutes an express finding that Schuster did not consent to the act. This Court reversed the case, holding Schuster to be an accomplice, whose testimony was not corroborated. The Court said, speaking through Judge Davidson: 'It is not so much whether Schuster consented to the act as it is whether he objected thereto and was forced to submit to the act perpetrated upon him against his will.'

Gottschalk was a fondling case in which a 13 year old boy's sex organ was fondled by the appellant. The...