Nicholas v. State, 44833
| Decision Date | 12 April 1972 |
| Docket Number | No. 44833,44833 |
| Citation | 478 S.W.2d 494 |
| Parties | Frank Louis NICHOLAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Kenneth L. Sanders, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is rape; the punishment, fifty (50) years.
The record reflects that appellant entered the dry cleaning establishment owned by the prosecutrix, robbed her, raped her and shot her in the head twice.
Appellant's first ground of error is that the State failed to prove an act of penetration.
The prosecutrix testified directly and specifically that the appellant placed his private part in hers and achieved penetration. There was no testimony to the contrary. The jury was instructed that penetration of a sexual organ of the female by the male organ of the appellant must be proved beyond a reasonable doubt. The jury, by its verdict, found that such penetration was proved beyond a reasonable doubt. It has been held that the testimony of the prosecutrix alone is sufficient evidence to present that issue to the jury. Bell v. State, Tex.Cr.App., 411 S.W.2d 725.
The prosecutrix' testimony, supported by a prompt outcry, as we have in the case at bar, has consistently been held to be sufficient to support the conviction for the offense of rape. See Bell, supra.
Appellant next claims, without citation of authority, that the prosecutor 'did in fact take the witness stand and testify to issues of the trial itself to which proper objections were entered by defense counsel.' He contends that the co-counsel for the State took the stand 'only to bolster his own case.'
On cross-examination, the appellant questioned State's witness Detective Orlando extensively concerning the offense report he filed which partially conflicted with the prosecutrix' testimony, and in trying to impeach his testimony, asked whether he and the prosecutor had discussed the discrepancies during an earlier recess. The witness admitted he had spoken to the prosecutor about the offense report but denied any detailed discussion concerning the complaining witness' testimony.
In rebuttal, the prosecutor called his co-counsel who testified he was present during the conversation between the prosecutor and Orlando and that they did not discuss the prosecutrix's testimony....
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Sherbert v. State
...was ample to prove the act of penetration and conclude that the evidence was sufficient to support the conviction. Nicholas v. State, Tex.Cr.App., 478 S.W.2d 494; Sanchez v. State, Tex.Cr.App., 479 S.W.2d Appellant contends the court erred in allowing the prosecutrix to relate the hearsay c......