Mannie v. State
| Decision Date | 07 October 1987 |
| Docket Number | No. 05-86-00640-CR,05-86-00640-CR |
| Citation | 738 S.W.2d 751 |
| Parties | LaStarza MANNIE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Fred M. Talkington, Dallas, for appellant.
Pamela Sullivan Berdanier, Dallas, for appellee.
Before STEPHENS, HECHT and THOMAS, JJ.
A jury convicted LaStarza Mannie of sexually assaulting his 12-year-old niece, and sentenced him to 35 years' imprisonment. On appeal, Mannie complains that evidence of his having sexually assaulted his niece on a prior occasion should not have been admitted, that the evidence is insufficient to support his conviction, and that the statutory parole law instruction should not have been given to the jury. We overrule Mannie's three points of error and affirm the conviction.
To see whether evidence is sufficient for conviction, we must view it in the light most favorable to the verdict and decide whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex.Crim.App.1984). We therefore turn our focus upon the evidence in support of the verdict.
At the time of trial in 1986, Mannie was 35 years old, divorced with no children. Before the events of Christmas-time 1985 which concern us here, Mannie had, on occasion, lived in the home of his brother, who was married with five children. Even when he was not living in his brother's home, Mannie often stayed with the children when their parents were away. M___, Mannie's niece, the oldest of the children, was a twelve-year-old seventh-grader during the period of time important to this case.
M___ testified that one evening between Christmas 1985 and New Year's Day, her father and Uncle Mannie returned home from fishing about 10:00 p.m. M___ remembered that she had gone to bed about an hour earlier but awakened when she heard her father's car start up and pull out of the driveway. She would later learn that her father and mother left to go to the store, but that night she just fell asleep again after hearing the car leave.
A few minutes later, M___ was again awakened, this time by her uncle Mannie pulling her out of bed. She recalled that he took her, half asleep, into the den and laid her on the floor between the couch and fireplace, face up, dressed only in her panties and mother's cotton nightgown. By the dining room light she could see her uncle Mannie, wearing pants, a jacket and a sweater, crouch over her and pull down his pants. Then, M___ testified, while her brothers and sisters slept, Mannie raped her. Mannie stayed on top of her for what seemed like a long time, M___ said, moving up and down, hurting her, saying nothing. Suddenly, as M___'s parents' car drove up, Mannie stopped, got off her, pulled his pants up, and in a rough voice told her to tell no one what had happened. M___ got up and returned to bed.
M___ testified that she waited in bed until her mother was asleep and her father had left to take Mannie home, and then went to the bathroom and washed herself with a wet wash cloth and soap. She testified that she did not see anything wet on her but she cleaned up because there might have been, as there had been before, the first time Mannie assaulted her.
Over Mannie's objection, M___ testified that Mannie had raped her once before, about two months earlier, when Mannie was staying with her and her brothers and sisters while her parents were out of town. That time, she said, she was in her room doing her homework when Mannie came in and told her to go clean up the bathroom. She testified that when she went to the bathroom to do as she had been told, Mannie came in the bathroom with her, shut the door, and pulled down his pants. Then, she stated, Mannie laid her face up on the floor, pulled down her pants and underwear, and raped her, moving up and down. M___ testified that Mannie hurt her, and that when he got up she noticed "wet stuff" on her leg. Mannie pulled his pants up and left. M___ cleaned up with a wet cloth and soap, and then returned to her room.
M___ testified that at first she told no one about the earlier incident because she was afraid. She said she was bothered at school and at home and thought about what had happened, but kept it inside. After the later incident she was also afraid to tell anyone what had happened, partly because Mannie had warned her in a rough voice not to, and partly because people would think bad of her. M___ testified that she felt embarrassed and unclean.
M___ said her conscience continued to bother her until she decided she had to tell someone what had happened. On February 5, 1986, during her lunch break at school, she went to her guidance counselor's office, closed the door, and said she needed to talk. The counselor testified that M___ was crying and had difficulty talking, but managed to tell about both times Mannie had raped her. The counselor called her mother to take her home, and her mother called the police.
The next day M___ and her mother saw Dr. Julie Fryberg at Children's Medical Center. Dr. Fryberg examined M___ and testified at trial that she had a torn hymen, consistent with penetration of her vagina by a male sexual organ. Dr. Fryberg testified that during the examination M___ was cooperative but withdrawn, "very appropriate for having experienced [a sexual] assault."
M___ testified that Mannie had stayed with her and her brothers and sisters many times and had never been ugly to any of them. She said Mannie had been good to her and that she was not afraid of him. M___ testified that she goes to church and knows the difference between the truth and a lie. She stated that she watched television and read newspapers, but that she had never read about child abuse. She testified that she did not make up the charge against Mannie.
M___'s father testified that these circumstances had been a "very heartrending and emotional time". He remembered that Mannie had stayed with his children while he and his wife had traveled to Tennessee. He also stated that he and Mannie had probably gone fishing in December, although he simply could not recall one way or the other having done so between Christmas and New Year's Day. M___'s father acknowledged that he testified before the grand jury that he believed his daughter over his brother, but that his daughter did not appear to have been emotionally hurt.
One of Mannie's best friends, Bob Steele, testified that Mannie stayed with him and his wife at their trailer home all weekend after Christmas. Most of the time, Steele said, he and Mannie just laid around and watched cartoons on television. He was pretty sure, he said, that Mannie did not go fishing with his brother that weekend. But Steele's testimony, it is fair to say, was rather ambiguous at best, as the following excerpts show:
Q Do you recall what you did on Saturday [after Christmas]?
A Mainly laid around.
Q All right. Did you go with LaStarza Mannie over to his brother's house?
* * *
A I don't think so, no.
Q Did you go at any time around the Christmas holidays?
A No.
Q And during the Christmas holidays, during that vacation time, Les Mannie was with you at least that whole weekend?
* * *
A Yes.
A Yes, uh-huh.
Q And he never left the house?
A That night, yes.
Q I'm talking about Saturday.
A No.
Q He never left the house?
A No.
* * *
Q You just stayed there and watched TV the whole time?
A Yeah....
* * *
Q So you watched cartoons all day long?
A Yes.
* * *
Q So, you watched every move that he made?
A Every move?
Q Yeah.
A Well, he didn't leave the house.
Q You're positive about that?
A Yeah.
Q Didn't leave the house over what period of time? I'm talking about from, let's say, the Friday that you're talking about until--Well, what day was Christmas on?
A Tuesday, I believe. [Christmas was actually on Wednesday in 1985.]
Q Okay. So, from what period to what period of time are you saying that Les never left the house?
A You mean leave the house to go out, stay two, three hours? Is that what you're saying?
Q I'm just talking about leave the house.
A No, he didn't leave the house, no.
Q Over what period of time, two weeks, three weeks? Beginning when and ending when?
A Okay. I say that next month in January he probably left the house that second week in January. He might have went fishing with his brother, something like that.
Q Okay. So, we're talking from what time to the second week in January did Les Mannie never leave the house?
A What specific time? Is that what you're saying?
Q I'm just trying to get a ball park. From what time to what time? From what time to--what period of time from here, point A, to point B, second week in January, did--are you saying that Les Mannie never left your house?
A That's a difficult question. I can tell you this: That Saturday morning he was there; Sunday morning he was there; Monday morning I believe I took him to work.
The only night between Christmas and New Year's Day that Steele said he was with Mannie was the Friday night after Christmas. M___ did not recall what day of the week it was that Mannie assaulted her. Steele's memory was vague, despite the fact that Mannie had called Steele from jail to ask him to remember what went on the latter part of that December. "Really," he told the jury in the courtroom, "I didn't remember until I was sitting outside out there."
Finally, Mannie himself testified. He admitted that he had stayed with M___ and her brothers and sisters when their parents were in Tennessee, and that he often went fishing with his brother, M___'s father. But Mannie denied that he had gone fishing with M___'s father anytime between Christmas 1985 and New Year's Day, and that he had ever sexually assaulted M___. His only explanation of his whereabouts from Christmas to New Year's Day was: "I was over to Bob Steele's house, where I was living." Mannie acknowledged...
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