Jackson v. State
| Decision Date | 01 May 1973 |
| Docket Number | No. 46533,46533 |
| Citation | 493 S.W.2d 860 |
| Parties | Harold JACKSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Holland, Munn & Maverick by Chilton Maverick, San Antonio (court appointed), for appellant.
Ted Butler, Dist. Atty., John Quinlan, III, Michael P. Hodge, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for rape of a female under 18 years of age. Trial was before the court upon a plea of not guilty. Punishment was assessed at seven years.
Appellant contends that the evidence is insufficient to support the conviction.
The record reflects that appellant was a boyfriend of the two year old victim's mother, and that on May 26, 1971, appellant was babysitting with the victim, while her mother was at work.
At approximately 9:00 A.M., an aunt of the victim, Lillian Moszee, came to her sister's house and observed that appellant and the victim were the only persons present. She returned at 10:00 A.M. to find the victim 'dozing' on the commode and, when she attempted to get the victim off the toilet, appellant pushed her away and picked up the victim. Blood was observed dripping from the victim. After Lillian Moszee went to her grandmother's house to report what she had observed, she returned with her brother Garland Moszee and found appellant sitting on the bed pinning a diaper on the victim. Blood was observed on the bed. When questioned about the blood, appellant explained that the victim was constipated.
William Hobbs testified that he arrived at the house between 10:00 and 11:00 A.M. and observed the victim on a bloody sheet. Hobbs testified that appellant initially told him that blood came from his arm and later that it was due to the constipation of the victim.
The victim was carried to her grandmother's home by one of her aunts and, after they observed that she was bleeding from the vagina, appellant was brought to the grandmother's home. Upon being asked for an explanation of the victim's condition, appellant stated that she was constipated and 'he went straight to her and pulled some toilet paper out of her.' The toilet paper pulled from the victim's vagina by appellant was described as being red.
Maddie Garrison testified that appellant came to 'Happy's Inn' where she was a waitress, at 4:00 or 5:00 o'clock in the afternoon, on the day in question, and told her that he had jumped on Sandra Moszee 1 and the police were looking for him. She further testified that she told appellant to go to the ladies restroom and hide, and that after the police had been to 'Happy's Inn' and left, appellant told her
Dr. Robert Huff, a resident in obstetrics and gynecology at Bexar County Hospital, and Dr. George Gross, a resident in pediatrics at the same hospital, testified that they had examined the victim during the late evening and night of May 26, 1971. Dr. Huff described the injuries to the area of the vagina: Dr. Gross testified that he observed the same tears and lacertations that Dr. Huff found and, in addition, findings from surgery revealed 'mass lacerations of the liver and cryptic hematomas.' Dr. Gross stated bowel sounds were normal.
Both doctors testified that the injuries they found could have been caused by a male penis being inserted or attempted to be inserted into the vaginal area of the victim. Both doctors further testified on cross-examination that the injuries to the victim could have been caused by a coke bottle or fingers.
The record reflects the following upon cross-examination of Dr. Gross:
Two explanations were given by the doctors as to why no sperm was found in the victim. Dr. Huff stated that conditions were not good for finding sperm because of the bloody fluid present in the vagina. Dr. Gross noted that an absence of sperm is not significant since the attacker may not have had an ejaculation.
The victim did not testify, being a two year old girl and unable to talk. Thus, Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1033, is not applicable since it was impossible for the victim to testify in the instant case. In Nilsson v. State, TexCr.R., 477 S.W.2d 592, this Court said:
'Proof necessary to show carnal knowledge, under Article 1187, Vernon's Ann.P.C., is that: 'Penetration only is necessary to be proved on a trial for rape.' While proof of the slightest penetration is sufficient, this element of the offense must be proved beyond a reasonable doubt. e.g., Johnson v. State,...
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Clay v. State
...S.W.2d 70. Further, penetration may be proved by circumstantial evidence. Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592; Jackson v. State, Tex.Cr.App., 493 S.W.2d 860. A review of the testimony of the prosecutrix relative to penetration and whether appellant had a climax negates appellant's......
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Collins v. State
...into, a morass of attenuation. Illustrative here is extensive discussion of the circumstantial aspects of the proof. 1 Jackson v. State, 493 S.W.2d 860 (Tex.Cr.App.1973), cited approvingly by others who write in this case, was tried on the theory that the State relied on circumstantial evid......
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Colter v. State, 47274
...and appellant's close juxtaposition to the crime are sufficient to identify him as the person who committed the offense. See Jackson v. State,493 S.W.2d 860. The testimony of the prosecutrix and of the physician who examined her is clearly sufficient to show penetration beyond a reasonable ......