Lewis v. State
| Decision Date | 03 May 1961 |
| Docket Number | No. 33366,33366 |
| Citation | 171 Tex.Crim. 231,346 S.W.2d 608 |
| Parties | Lester Ray LEWIS, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Dalford Todd, Robert C. Benavides (on appeal only), Dallas, for appellant.
Henry Wade, Crim. Dist. Atty., Robert Power, William F. Alexander, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is indecent exposure to a child, as defined in Art. 535c, Vernon's Annotated Penal Code; the punishment, twelve years.
The prosecutrix, five years of age, lived with her parents across the street from the home of appellant. The prosecutrix testified that, on the afternoon in question while she and her playmate, Corky, were playing in the driveway at appellant's home, the appellant, who was working on his motorcycle, took them in the house, gave them a cookie, and then took her into the bathroom and closed the door. She stated that she then got up on the toilet and appellant proceeded to take off her panties; that appellant then pulled down his pants, took her off the toilet, 'mixed his tee tee' with hers, rubbed his 'tee tee' against hers, and then wiped between her legs with a towel. The prosecutrix testified that, on such occasion, she saw the appellant's private parts. She further testified that, after such acts, she went outside to her mother and told her something. The testimony shows that, after talking with her daughter, the mother then called her husband and the police. Soon thereafter the police arrived and placed appellant under arrest.
The State's proof shows that, later in the evening, the prosecutrix was examined by a physician which examination revealed irritation just inside the labia majora, which the physician testified could have been caused from a rubbing of the area.
Following his arrest and after being duly warned, appellant maed and signed a written confession which was introduced in evidence by the State.
The confession, omitting certain portions thereof, reads:
Testifying as a witness in his own behalf, appellant denied molesting the prosecutrix in any manner on the afternoon in question and repudiated that portion of his written statement in which he admitted his acts and conduct with her on such occasion. Appellant also testified in substance that he signed the statement because of certain representations which were made to him by the officer to whom the confession was made.
Certain character witnesses were called by appellant who attested his good reputation for truth and veracity and for being a peaceable and law abiding citizen.
The court submitted to the jury in his charge the issue as to the voluntary nature of appellant's written confession.
Appellant predicates his appeal upon two grounds.
It is first contended that the court erred in holding the prosecutrix competent to testify as a witness in the case. Appellant insists that, under the facts presented, the court abused his judicial discretion in permitting the prosecutrix to testify because it was not shown that she possessed sufficient intellect to relate the transaction and understand the obligation of an oath as required by Art. 708, Vernon's Annotated Code of Criminal...
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Nielson v. State, 41781
...for the lesser offense, the judgment in such prosecution will bar a future prosecution for the higher offense. In Lewis v. State, 171 Tex.Cr.R. 231, 346 S.W.2d 608, the accused was convicted of indecent exposure under an indictment charging such offense though the evidence showed the comple......
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McCurdy v. Ashley, 393
...v. Ridley, Wash., 378 P.2d 700, a witness was a girl who at the time of the trial was five years and four months of age; Lewis v. State, Tex.Cr.App., 346 S.W.2d 608, a witness was a five-year-old girl. See note-- competency of a child as a witness--to Wheeler v. United States, supra, in 40 ......
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...of a lesser sex crime but proof of rape (People on Complaint of Barber v. Caminiti City Ct., 28 N.Y.S.2d 133; Lewis v. State, 171 Tex.Cr.R. 231, 346 S.W.2d 608); conviction of lewd and lascivious conduct but proof of assault with intent to rape (Petty v. Deans, 73 Idaho 136, 248 P.2d 218); ......
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