Lozano v. State

• Decision Date: 25 January 1950
• Docket Number: No. 24467,24467
• Citation: 226 S.W.2d 118,154 Tex.Crim. 229
• Parties: LOZANO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 118

226 S.W.2d 118

154 Tex.Crim. 229

LOZANO v. STATE.

No. 24467.

Court of Criminal Appeals of Texas.

Jan. 25, 1950.

Victor B. Rogers, Fredericksburg, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Appellant was convicted of the rape of his seven-year-old daughter, the punishment assessed being five years in the penitentiary.

The sufficiency of the evidence to support the conviction is the sole question presented for review.

About September 7, 1948, appellant, with his wife, mother-in-law, and daughter, Maria, the prosecutrix, were at the place of Schultz, where appellant was employed in shearing goats. On that night, the wife and mother-in-law slept in a barn, or garage, while appellant and prosecutrix slept in an automobile. Prosecutrix was seven years of age and in the first grade at school.

Prosecutrix could not speak English; she gave her testimony through an interpreter. The trial court, in the absence of the jury, interrogated prosecutrix to determine her competency as a witness. Inasmuch as no objection was made to her testifying, her competency as a witness is not before us.

We quote all the direct testimony of prosecutrix, as follows:

'My name is Maria Lozano. I live at Stonewall. I am seven years old. I am in the first grade in school. I know the defendant, Vicinte Lozano. He is my father. I am not married to him; Vicinte Lozano is not my husband.

'I know Mr. Willie Schultz who lives down there at Twin Sisters. No, I have never been down to Mr. Willie Schultz's farm. Yes, I do remember, as you say, that my father, Vicinte, sheared some sheep for Mr. Willie Schultz last September. Yes, I do remember that first night down there that the weather was bad and it was raining and my mother and grandmother slept in the garage. I slept in the car. I did not sleep in the car by myself. My father slept in the car with me. I don't remember what took place that night in the car.

'I slept in the back seat of the car. Vicinte slept in the front seat. Yes, Vicinte got over in the back seat with me. When he got over in the back seat with me he tore my pants. Yes, he tore my pants. As to what he did next, he got on top of me. Then he grabbed me. Yes, I know where I pass water.

'No, I do not know what a man's private parts are. No, he did not have his pants unbuttoned. No, he did not have his pants off. Yes, the thing that he put in that place where I pass water was the same thing that a man passes water with. Yes, he did take my pants off. As to how he did that, with his hand.

'* * * Yes, this is the first time that Vicinte did this thing to me.

'As to whether I went to see Doctor Feller, a doctor in Fredericksburg, last February, and in July, 1948, I do not know. He did this thing to me down where we were shearing. No, not at Stonewall, at Twin Sisters. No, Vicinte did not do this thing to me once before at Stonewall.

'That is right, some time ago, when I was in Stonewall, I was bleeding in the place where I pass water. I do not know what caused me to bleed. Yes, that was the time, when I was bleeding, that I went to Fredericksburg to see a doctor,--I do remember that now. No, at the time I started to bleed over there in Stonewall, Vicinte did not do the same thing to me there that he did down there at Willie Schultz's place.

'As to why I did not tell somebody when Vicinte did this to me last September at Mr. Schultz's place--I did not want to tell anybody else. Yes, it is true, that Vicinte told me he would not buy me any dresses if I told anybody.'

Dr. Feller testified that in February, 1948, and about seven months prior to the alleged rape, he examined prosecutrix and that at that time she complained of a burning sensation when she urinated. An examination of her urine showed that it contained pus. He prescribed for her for that condition and three days thereafter another examination of her urine showed that it was clear of any inflammation. He made no further examination at that time. In December, 1948, or about three months after the alleged rape, Dr. Feller again examined prosecutrix and found that she had gonorrhea. An examination of her privates revealed that the hymen was broken and completely destroyed, and the vagina swollen and irritated, due to the gonorrhea condition.

The foregoing is all the testimony upon which this conviction is predicated. Prosecutrix is not corroborated in any particular regarding the alleged rape.

Appellant denied the alleged rape and mistreatment of his daughter. He professed his love for her as a father. He admitted that about the time fixed by prosecutrix he slept in the automobile, but testified that he was in the front seat and that prosecutrix slept in...