Martinez v. State, 04-81-00104-CR

• Citation: 634 S.W.2d 929
• Decision Date: 26 May 1982
• Docket Number: No. 04-81-00104-CR,04-81-00104-CR
• Parties: Modesto MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 929

634 S.W.2d 929

Modesto MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00104-CR.

Court of Appeals of Texas, San Antonio.

May 26, 1982.

Discretionary Review Refused Sept. 15, 1982.

Charles Campion, Don W. King, Jr., San Antonio, for appellant.

Bill White, Dist. Atty., Alan E. Battaglia, Asst. Dist. Atty., San Antonio, for appellee.

Before CADENA, C. J., and BUTTS and CANTU, JJ.

OPINION

CANTU, Justice.

In a trial before a jury appellant was convicted of rape of a mentally diseased or defected woman, see Tex.Penal Code Ann. § 21.02(a)(b)(4) (Vernon Supp. 1981), ¹ and punishment was assessed at eleven years.

Appellant in his first ground of error complains that the evidence was insufficient to sustain the conviction. He specifically asserts that there was insufficient evidence to prove lack of consent by the complainant and knowledge on his part of complainant's mental defect.

The standard for reviewing the sufficiency of the evidence requires that the evidence be viewed in the light most favorable to the verdict and if there is any evidence which, if believed, shows the guilt of the accused, the verdict will be sustained. See Rohlfing v. State, 612 S.W.2d 598 (Tex.Cr.App.1981); Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974). To dispose of appellant's first ground of error it is necessary to summarize the evidence adduced at the trial.

The record reveals that on September 10, 1977, the prosecutrix accompanied her mother, Mrs. Maria Valdez, to Zulema's bar located in San Antonio, Bexar County, Texas. There they met Zulema, the owner of the bar, with whom they sat and talked for approximately forty-five minutes. Feeling uneasy about prosecutrix's presence at the bar, Mrs. Valdez sought to return home and called for a cab on three different occasions. Because the efforts to secure a cab were unsuccessful, Mrs. Valdez asked Zulema if she had any friends who might give them a ride home. Zulema asked appellant, a patron of the bar, if he could drive Mrs. Valdez and prosecutrix home. Appellant agreed. Before accepting the offer of appellant, Mrs. Valdez ascertained that appellant was a friend of Zulema's and a good person.

During the ride home, the three of them rode in the front seat, with the prosecutrix in the middle. The prosecutrix started playing with appellant's C.B. radio at which time Mrs. Valdez advised appellant that the prosecutrix did not know how to talk on the radio. Appellant told the prosecutrix to say goodnight over the C.B., and prosecutrix complied. Upon reaching their house, Mrs. Valdez took the prosecutrix inside, where her 14-year old daughter and her 10-year old granddaughter were watching television. She instructed all three to go to bed and lock the doors. Mrs. Valdez asked appellant if he could give her a ride to another bar and appellant agreed. They proceeded to "Little Joe's." Mrs. Valdez testified that during the drive to "Little Joe's" appellant asked her to go have a drink with him, that she declined and that upon reaching "Little Joe's" he tried to kiss her.

The prosecutrix's 14-year old sister testified that as they were preparing to go to bed, a car screeched to a halt in front of their house. She looked out and recognized the white car and the man driving as being the one who brought her mother and sister home about ten minutes earlier. She further testified that he yelled from his car that he was coming to pick up the girl he had just dropped off to take her back to her mother. He explained that her mother was at a dance and had requested that he return and pick up her daughter. The prosecutrix got dressed and left with appellant even though her sister, suspecting something to be wrong, had advised against going with him.

Mrs. Valdez arrived home a short while later and, discovering the prosecutrix gone, became frightened and called her son who in turn called the police. When the police responded to the call they were given a description of appellant and the car he was driving. The investigating officer testified that the call had come out as a kidnapping and that when he arrived at the residence he spoke with Mrs. Valdez who appeared very excited about her daughter.

The prosecutrix was found by her mother and brother the next day at approximately 12:00 noon, standing in front of one of prosecutrix's mentally retarded friend's house. Mrs. Valdez testified that her daughter was wearing the same outfit she had had on the night before, but that her slacks were bloody, she was dirty, she had bite marks on her neck, her hair was uncombed and she appeared frightened. When Mrs. Valdez approached her, prosecutrix started to cry.

Prosecutrix was taken home and from there she was taken immediately to Bexar County Hospital to be examined. The doctor who conducted the examination testified that he recalled the prosecutrix to be "somewhat mentally retarded and had come to this conclusion after conversing with her a short time." He noted that she had a hard time responding to the questions he asked her. His physical examination of her revealed an abrasion on the posterior surface of the vulva. The test for semen and sperm conducted at the hospital resulted in a negative finding. However, the test run at the San Antonio police lab on her pants and vaginal swab proved positive for semen.

The testimony adduced from the prosecutrix's mother, brother and sister indicates that they suspected that there was something wrong with prosecutrix at a very young age. Prosecutrix was enrolled in a public school for about a week before she was transferred to a school for the mentally retarded, and on the advice of doctors, attended a special school for the retarded until she was 18-years old. She then trained at Goodwill Industries.

Prosecutrix never learned to read or write, could not count past ten, did not know how to exchange money or use a phone, did not know when she was born, had never been out alone, and had never dated nor been with a man. Her mother testified that she could dress herself, but that she had to be shown how to combine colors and that she could perform some household chores such as washing dishes, sweeping floors and making beds. Prosecutrix's sister testified that the prosecutrix played checkers, jacks and liked to jump rope. Her brother testified that he had tried to teach her how to dance but that she did "not really" know how because she was very uncoordinated. He had never seen her dance with anyone before, nor had he seen her play pool, and in his opinion was unable to play such a game.

The prosecutrix testified at trial, with the aid of an interpreter, and in response to questions, indicated that she was both five years old and twenty-five years old. She could not say her age but could only write it on the board. She was unable to write anyone's name. She stated that she cleaned the house, swept floors, mopped, made beds and hung out clothes, liked to play the games twister, bingo and cards, knew what street she lived on but not what city, did not know what day of the week it was, nor what month, and could recognize only the numbers one through six.

She identified appellant as the person who came to pick her up and stated that she left with him "because he said that (her) mother said for him to come for (her)." She testified that he took her to Monterrey Park where he took her pants off against her wishes. He told her to lay down and he sat on top of her and "what a boy has, he put it in (her)." After she put her pants back on, he took her to a bar where he drank three "Schlitz" beers.

After leaving the bar, appellant took her to an "apartment" with the number six on the door, where he locked the door behind them, told her to take a shower with him and helped her take off her clothes. She further testified that she felt afraid during this time. He told her to go to bed, forcing her down by grabbing both arms and laying her down backwards. Her testimony was that "what the man has he put in me," "he told me that we should go to bed so he could put it in me," "he put it in there" twice. She stated that it hurt, and she bled. They went to sleep and were awakened the next morning by a knock on the door, at which time appellant got up and paid the man at the door some money. According to prosecutrix, she got up, dressed, and went to the restroom where she noticed blood on her pants. From the motel, appellant took prosecutrix to San Pedro Park, where they got out of the car and talked.

After leaving the park, appellant put gas in his car and left her at her friend's house. Prosecutrix directed him there and did not have him take her home because she was "afraid her mother would beat her up."

On rebuttal, the State called Dr. McNichol, the psychiatrist for the Bexar County Courts, who had conducted a formal psychiatric evaluation of the prosecutrix. His clinical diagnosis indicated that she was in the moderate range of mental retardation with an I.Q. ranging from 55 to 65. He testified that her mental capacity was equivalent to that of a six to eight year old. The tests conducted on prosecutrix revealed that she could not count past eight, could not state her age, although she could write it. She was able to put together some sensible phrases and sentences, but had very little general knowledge. She could write her name, but misspelled it. Dr. McNichol testified that her mental retardation was "manifestly obvious after about two minutes" and that she could not deceive a person as to her mental retardation unless that person was equally retarded. He further concluded that she had a passive personality and could be easily deceived by others. Her understanding of sexual intercourse was at best only primitive and in his opinion she was incapable of appraising the act of sexual intercourse and of resisting it. He further felt that the prosecutrix was incapable of conjuring up a detailed set of facts.

Appellant testified and offered the...