McDonald v. State

• Decision Date: 10 July 1974
• Docket Number: No. 48408,48408
• Citation: 513 S.W.2d 44
• Parties: Bufford Lenell McDONALD, allas Joe McDonald, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 44

513 S.W.2d 44

Bufford Lenell McDONALD, allas Joe McDonald, Appellant, v. The STATE of Texas, Appellee.

No. 48408.

Court of Criminal Appeals of Texas.

July 10, 1974.

Rehearing Denied Sept. 18, 1974.

Harold D. Sanderson, Amarillo, for appelalnt.

Tom Hamilton, Dist. Atty., Plainview, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for sodomy wherein the punishment was assessed by the jury at fifteen (15) years.

Appellant has filed pro se briefs asserting some nineteen grounds of error. ¹

Initially, appellant contends his warrantless arrest was without probable cause. It appears from the record that the arrest, some eight days after the alleged offense, was made without a warrant after the arresting officer had talked to some young boys. There were no confession or fruits of any search incident to arrest introduced. We find no reversible error.

Next, appellant complains that he was not accorded an examining trial as required by Article 15.17, Vernon's Ann.C.C.P.

The State points out in its brief that the record reflects the original complaint filed alleging sodomy involved another complaining witness, Tony J_ _, for which offense appellant was subsequently indicted. After such complaining witness moved out of town, the State sought the instant indictment directly from the grand jury without filing a complaint in a Justice of the Peace Court. In Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), this court held that the return of an indictment terminates any right to an examining trial. See Article 16.01, Vernon's Ann.C.C.P., and Harris v. State, 457 S.W.2d 903, 907 (Tex.Cr.App.1970), and cases there cited. Once an indictment, a true bill, has been presented or returned by a grand jury, the principal purpose and justification for such preliminary hearing has been satisfied.

The indictment, omitting the formal part, alleged that on or about September 12, 1971, appellant did 'use his mouth on the sexual parts of another human being, to wit, Clemente _ _, for the purpose of having carnal copulation . . ..'

The record reflects that on Saturday, September 11, 1971, Clemente _ _, his brother, Luis, and a friend, Tony _ _, went to the movie theater across the street from the courthouse in Dimmitt. While at the theater, they met appellant, who gave each of them a dime with which to buy candy. After purchasing the candy, the boys went in to watch the movie and appellant sat with Clemente.

The next day, Sunday, September 12th, the three boys went to a hotel across the street from the courthouse. When they arrived, appellant was watching television. At approximately 3 to 3:30 p.m. Clemente went to Room 12 with appellant. While there, appellant gave Clemente a dollar, had him get on the bed, removed his pants, and placed his mouth on Clemente's penis.

Appellant challenges the sufficiency of the evidence to sustain the conviction on several grounds. Among them is the complaint, as we understand it, that the complaining witness' testimony failed to identify him as the perpetrator of the offense, was vague, indefinite and uncertain. The record reflects that Clemente testified:

'Q Now, are you acquainted--do you know Buddy McDonald?

'A Yes.

'Q Is that the man sitting right over here?

'A Yes.'

Thereafter, he referred to the man who had committed the offense simply as 'Buddy.' While the interrogation above, standing alone, leaves open to argument whether the man identified was in fact the appellant--other witnesses offered by the State clearly identified the appellant and testified he was known as Buddy McDonald. The jurors were judges of the facts, the credibility of witnesses, etc., and we cannot say the evidence is insufficient on the ground urged.

Appellant also urges that the evidence is insufficient to sustain the conviction since it was not shown that the complaining witness' sexual organ penetrated his (appellant's) mouth.

In Sinclair v. State, 166 Tex.Cr.R. 167, 311 S.W.2d 824 (1958), this court held that penetration of the mouth is not an essential element of the offense of use of the mouth on the sexual parts of another human being for the purpose of having carnal copulation as proscribed by Article 524, Vernon's Ann.P.C. It was noted that use of the mouth on the sexual parts of another for the purpose of carnal copulation is sufficient to sustain a conviction for sodomy.

The complaining witness testified that appellant placed his mouth 'on' his (the witness') penis. Such evidence was sufficient under the statute to sustain the conviction. ²

Appellant also complains that the court fundamentally erred in defining carnal copulation in the charge as requiring that '. . . the male sexual organ must be shown to have penetrated the mouth of the defendant . . ..'

There was no objection to the charge, nor was there a special requested charge. As noted above, penetration was not required, and the charge was more favorable than that to which the appellant was entitled. The jury having, under all the evidence, resolved the issue against him, appellant is not in a position to complain now.

Appellant also challenges the constitutionality of Article 524, Vernon's Ann.P.C. We have previously held the statute constitutional. Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1970), appeal dismissed for want of a substantial question, Pruett v. Texas, 402 U.S. 902, 91 S.Ct. 1379, 28 L.Ed.2d 643 (1971); Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971), cert. denied, Buchanan v. Texas, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804 (1972); Everette v. State, 465 S.W.2d 162 (Tex.Cr.App.1971). We adhere to such decisions.

Appellant also urges the court's charge was incorrect because it failed to allege a specific date therein for the commission of the offense, using instead the 'on or about the 12th day of September, 1971' allegation in the indictment.

It is well settled under Article 21.02, Sec. 6, Vernon's Ann.C.C.P., that the State is not bound by the date on or about which the offense is alleged to have been committed, but a conviction may be had upon proof that the offense was committed any time prior to the return of the indictment that is within the period of limitation. Glenn v. State, 436 S.W.2d 344 (Tex.Cr.App.1969).

The evidence here showed the offense occurred on September 12, 1971, and was sufficient to show it was committed prior to the presentment of the indictment and was within the period of limitation.

The court's charge was not incorrect.

Although the court submitted the fact issue to the jury as to whether the complaining witness was an accomplice witness, appellant complains of the trial court's failure to charge the jury that Clemente _ _ was an accomplice witness as a matter of law. Further, he contends that since Clemente was the only witness to the act alleged in the indictment, the evidence is insufficient because Clemente's testimony was not corroborated. See Article 38.14, Vernon's Ann.C.C.P.

This contention is based on the fact that Clemente testified on cross-examination as follows:

'Q All right. Did you understand back in September of '71, at the time that this happened, did you know whether this was right or wrong, what he did to you? Do you know whether that was the right thing to do or the wrong thing to do?

'A Wrong thing.

'Q What?

'A The wrong thing.

'Q All right. And did you know whether it was a crime or not to do this type of thing?

'A No.

'Q Okay. But you did know and understand that it was wrong?

'A (Witness nods his head affirmatively)

'Q And did he force you in any way to do this? Did he use any kind of physical force or threats?

'A No.

'Q You did it willingly?

'A Uh-huh.'

The record show that Clemente was ten years old at the time of trial. His date of birth or his age at the time of the offense is not shown; however, since the offense occurred more than sixteen months prior to trial, it appears that he was eight or nine years old at that time.

By their verdict the jury found that Clemente was not an accomplice witness.

Prior to its amendment in 1967, Article 30, Vernon's Ann.P.C., provided that no child between the ages of nine and thirteen was criminally responsible for any offense unless it appeared that such child 'had discretion sufficient to understand the nature and illegality of the act.' Based on such statute in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727 (1950), we conceived the correct rule relative to a child witness to be as follows:

'(1) Each case must be considered upon its own facts in determining whether the witness is to be considered a victim of the unlawful act of another or as a participant therein, and therefore an accomplice.

'(2) If inferences are to be indulged, the correct inference would be that a child over nine and under thirteen years of age possesses sufficient discretion and knowledge to be an accomplice.

'(3) If from the evidence, a question is raised as to whether the child between the ages of nine and thirteen years voluntarily participated in the criminal act, or as to whether such child, so participating, is possessed of sufficient discretion to know the act to be criminal, and to have the necessary criminal intent, such issue or issues should be submitted to the jury in order that the jury may, by resolving such issue, determine whether the witness is to be considered an accomplice witness.

'(4) If the record as a whole shows that the child witness has such discretion, and voluntarily participated in the unlawful act, then the testimony of the witness should be dealt with as that of an accomplice witness.'

In 1967 Article 30 supra, was amended to read as follows:

'Section 1. No person may be convicted of any offense, except perjury, which was committed before he was 15 years of age; and for perjury only when it appears by proof that he had sufficient discretion to understand the nature and obligation of an oath.' Acts 1967, 60th Leg., p....