Lujan v. State
| Decision Date | 30 December 1981 |
| Docket Number | No. 04-81-00063-CR,04-81-00063-CR |
| Citation | 626 S.W.2d 854 |
| Parties | Jose Luis LUJAN, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Dan Dennis Hartnett, San Antonio, Jose Luis Lujan, pro se, for appellant.
Bill M. White, Dist. Atty., Douglas V. McNeel, Asst. Dist. Atty., San Antonio, for appellee.
Before ESQUIVEL, BUTTS and CANTU, JJ.
The offense is indecency with a child. The punishment is life imprisonment as a habitual offender. Trial was to a jury on both phases upon an indictment alleging two prior convictions for enhancement.
In three separate grounds of error appellant challenges the sufficiency of the evidence to support the jury verdict. We are required to view the evidence in the light most favorable to the verdict and in so doing a factual summary of the evidence adduced at the trial reveals that on November 11, 1978, sometime after 2:00 p. m., appellant drove up in his El Camino truck to the residence of G______ and L______ L______ located in the City of San Antonio, Texas. Appellant is the brother of L______ L______.
The L______s were not at home, having gone shopping earlier in the day and having left their three minor children, Tony aged 10, Philip aged 11 and the prosecutrix aged 6 alone at home. Appellant, known as Uncle Joe to the children, asked the six year old prosecutrix if she wanted to go to the store with him. The prosecutrix acquiesced with permission of her eleven year old brother, Philip, and left with appellant.
Shortly thereafter, Mr. and Mrs. L______ returned and learned that the prosecutrix had gone with appellant. The L______s looked for the child, reported the incident to police and enlisted the aid of other relatives in looking for appellant and prosecutrix. At approximately 12:30 a. m., on November 12, 1978, appellant's stepbrother, David C. Cardenas, located appellant's El Camino truck off on the side of the road near the intersection of S. Presa and Military Drive in San Antonio.
Cardenas observed that one of the rear tires of appellant's vehicle was flat and that there was no spare tire or jack. He also saw prosecutrix standing on the front seat of the vehicle and appellant asleep behind the wheel. The child was fully dressed and her clothes did not appear to be disturbed. Cardenas believed appellant to be drunk and observed two empty "tallboy" beer cans on the floorboard of the vehicle.
Appellant and prosecutrix were driven back to the L______s' residence by Cardenas. Neither appellant nor the child said anything during the drive. When they reached the L______ residence Cardenas took the child in the house but allowed appellant to remain in the car. Once inside, Mr. L______ "got after" the child in the living room and sent her to one of the bedrooms with Mrs. L______. Mrs. L______ spoke to the prosecutrix alone in the back bedroom and subsequently called her husband into the bedroom.
The police were called and upon their arrival Mr. L______, pointing to appellant sitting in Cardenas' vehicle, ordered appellant's arrest for rape. Appellant broke and ran a short distance but was captured and arrested by the police.
After some further interviews by the police with the L______s and the child, appellant was charged with indecency with a child. On March 13, 1978, appellant's jury trial began and continued through the next day. After the State had rested its case, appellant moved for and was granted a mistrial.
The second trial began immediately after the first jury was discharged by the trial court. The State essentially repeated the same evidence offered at the initial trial.
David C. Cardenas, testifying about locating appellant and the prosecutrix, said that as soon as the child saw him she went up to him but appeared to be scared and would not respond to his questions. The prosecutrix testified that appellant, her uncle Joe, picked her up at her home and took her to a store where he bought her a soda and Cracker Jacks. They then drove around for awhile until the vehicle came to a stop.
Appellant then told the prosecutrix to pull down her pants when she finished her soda. The child refused to do so and appellant then pulled them down himself. Further examination by the State reflects the following colloquy:
The prosecutrix further stated that appellant had told her not to tell anybody.
Mr. L______ described the prosecutrix, upon being returned home by Cardenas, as being "shook up", "scared" and "trembling." Mrs. L______ testified, without objection, that immediately upon the prosecutrix's arrival at home, she took her aside to talk to her about where she had been. The child was hesitant about discussing the matter but eventually responded. 1
The following colloquy then took place:
Appellant did not testify but simply called the court reporter as his only witness in an effort to impeach the child with a prior inconsistent statement involving another alleged sexual act.
Appellant maintains that the testimony of the prosecutrix "with his finger he put it on the front and back (of her body) where she goes to the restroom" is insufficient to sustain the allegation in the indictment that appellant did engage in sexual contact by touching the vagina of the prosecutrix.
Appellant was indicted for the offense of indecency with a child under the provisions of Tex.Penal Code Ann. § 21.11 (Vernon 1974), which provides in relevant part:
(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; ....
At the time of the offense and trial, sexual contact was defined by § 21.01 as:
(2) ... any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person. 2
The indictment, with formal parts omitted, alleged:
... on or about the 11th day of November, A.D., 1978, Jose Luis Lujan, hereinafter called defendant, did then and there intentionally and knowingly engage in sexual contact with K______ L______, hereinafter called complainant, a female child not then and there the spouse of the defendant, younger than seventeen (17) years of age, by then and there touching the vagina of the said complainant with the intent to arouse and gratify the sexual desire of the defendant ....
Initially, we note that the indictment would have sufficiently charged an offense by simply alleging a touching of any part of the genitals without specifying the vagina. Clark v. State, 558 S.W.2d 887 (Tex.Crim.App.1977). Having particularly alleged "the vagina," the State was required to prove a touching of the vagina to satisfy the burden of proof undertaken.
In Clark v. State, supra, argument was made that the State had failed to prove the commission of an offense because § 21.11, does not include the urinary opening in the definition of "sexual contact" but is limited only to the anus and genitals. The Court of Criminal Appeals in rejecting the argument held that the statute includes the touching of "any part of the genitals" of a person, thus including more than just the vagina in its definition.
The court further held that the definition of "genitals" includes the vulva which immediately surrounds the vagina. Citing Ball v. State, 163 Tex.Crim. 214, 289 S.W.2d 926 (1956) and Pendell v. State, 158 Tex.Crim. 119, 253 S.W.2d 426 (1952). "Vulva" is defined as the external parts of the female genital organs, including the labia majora, the labia minora, mons veneris, clitoris, perineum, and the vestibule or entrance of the vagina. The Simplified Medical Dictionary for Lawyers (B. Maloy 2d ed. 1951) 571; see also Gray's Anatomy (C. M. Goss 25th ed. 1951) 1317. "Vagina" has been defined as the genital canal in the female, extending from the uterus to the vulva. Stedman's Medical Dictionary (3d unabridged Lawyer's Ed. 1972) 1367. Thus, under prior Texas case law, "genitals" has been held to include both the vagina and the vulva. Ball v. State, supra; Pendell v. State, supra. The particularized pleading by the State alleging a touching of the vagina would require no less than proof of a touching of the vagina or some constituent part thereof, and we would be remiss in our duty to require any less from the State to satisfy its burden of proof.
Under the predecessor statute, Tex.Penal Code Ann. art. 535d (1925), it was the consistent practice of our Court of Criminal Appeals to uphold...
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