Nilsson v. State

• Decision Date: 16 February 1972
• Docket Number: No. 44493,44493
• Citation: 477 S.W.2d 592
• Court: Texas Court of Criminal Appeals
• Parties: William D. NILSSON, Appellant, v. The STATE of Texas, Appellee.

Page 592

477 S.W.2d 592

William D. NILSSON, Appellant, v. The STATE of Texas, Appellee.

No. 44493.

Court of Criminal Appeals of Texas.

Feb. 16, 1972.

Rehearing Denied April 5, 1972.

Clyde W. Woody, Marian S. Rosen, Houston, for appellant.

Ted Butler, Dist. Atty., and Lucien B. Campbell, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of rape of a female under fifteen years of age. The state waived the death penalty and, after a finding of guilty by a jury, the judge assessed punishment at 20 years confinement in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is challenged.

The record reflects that during part of the month of November, 1967, appellant was a guest in the home of the father and mother of the prosecutrix, in San Antonio. He was a friend of the family and visited in the home on many occasions. He was previously married to a relative of the mother. At approximately 3 A.M. on the morning of November 14, 1967, the mother was awakened by the sound of one of her children screaming: 'Bill, stop it; I can't stand it. I can't take any more.' She awakened her husband, who investigated. The father found appellant and the eleven year old prosecutrix in her bedroom, which she shared with her four younger sisters. The prosecutrix was lying in her bed, which was the top bunk of a bunk bed. Appellant told the father that, 'She is having a nightmare; she'll be O.K.' The father returned to his bedroom when he heard a second scream. Both the father and the mother then went to the child's room and carried her to their bedroom.

Once the prosecutrix had been carried to her parents' bedroom, it was discovered that she had blood on her feet, legs, privates, and stomach. Also, it was discovered that the girl's pajama pants had been removed. At this point, appellant entered the room, said: 'I did it to her,' and pleaded that they not have him arrested because he 'could not stand to go to jail for 50 years.' The mother stated that the child was in a state of partial unconsciousness.

An ambulance was summoned, and the prosecutrix was taken to the hospital. The father and appellant remained at the home with the remaining children. The father did not want the children to see the blood. He found a trail of blood leading from the living room couch, where appellant had been sleeping, to the prosecutrix' bed and found blood on the bed and couch. Appellant then told the father that the child had come to him in the living room, during the night, and asked him to rub her privates. He complied and 'got hot and took her.' Appellant stated to the father that he was sorry and asked the father to shoot him instead of prosecuting him because he 'couldn't stand staying in jail for a long period of time.'

While cleaning the living room, the father found a pair of bloody men's under-shorts beside appellant's shoes beneath the couch. He also found an open vial containing Trilene, which belonged to appellant, and asked the appellant to replace the lid so that the other children would not get into it. No blood was discovered on the vial.

In addition to the above, the parents testified that, on the night in question, appellant had been wearing white trousers. Approximately two weeks later these trousers were found in a closet in the home and blood stains were on the crotch of the trousers. Neither of the witnesses could remember whether the trousers were stained on the night in question.

The prosecutrix testified that, on the night of the occurrence, she had gone to bed at approximately eight P.M. All that she could remember of the period between the time she went to bed and the time at which she awoke at the hospital was that appellant had 'smelly stuff' on a Kleenex which made her drowsy. She stated that, when she smelled it, she was on the couch in the living room.

Drs. James Aubrey Lewis and Richard Michael Ragsdale examined the prosecutrix on the night in question. Each testified that he had specialized in training in obstetrics and in gynecology.

Dr. Lewis Testified that:

'On examining the head and neck area, there was a bruise of the right eyelid, an underlying hemorrhage of the sclera or the white part of the eye. Examining the arms and legs, or the extremities, there was a 2 3 centimeter or approximately 1 1/2 1 yellow old bruise of the left anterior thigh a 2 2 centimeter purplish bruise of the right anterior thigh, a 1 1.5 centimeter bruise of the right lateral thigh. There was both fresh and clotted blood on the lower part of the stomach or the abdomen, on the perineum or the vulva, the inner thighs and the lower legs and feet. There was a laceration or a cut of the hymen on the left side near the urethra, the tube that leads from the bladder to the outside just above the vagina.

'(Indicating by diagram:) The first injury that I described was a tear of the hymen which surrounds the opening of the vagina, to the left side of the urethra--where the tube leads from the bladder to the outside--a tear in this area (indicating). There was another laceration or tear of the perineal body, which is similar to an episiotomy or an incision we make for delivery of a child. It was in the midline and it involved the inner lining or the vagina, the hymenal ring or hymen, and what is called the perineal body or the skin between the vaginal opening and the anus. It extended almost to the anus but did not involve the sphincter muscle around the anus or the lining of the rectum. There were three other lacerations or tears within the vagina. Looking at these (indicating) as the face of a clock, where it is 3:00 o'clock and 9:00 o'clock. You can see this better laterally, this (indicating) being the vagina, the cervix and uterus; and the bladder and the tube from the bladder leading to the outside and the rectum posteriorly. These lacerations were in the lateral vagina, and a 3 centimeter--approximately an inch and a half laceration--across the posterior wall of the vagina beneath the cervix.'

He stated that he considered these to be major injuries, that they were caused by 'some blunt object that was larger than the vagina (which) was inserted or forced into the vagina,' and that the injuries were of the type which could have been caused by the insertion of an adult male penis. He also testified that the sperm test was inconclusive in that the 'report described cells which were too degenerative to identify as spermatozoa for forensic purposes.' He explained that such degeneration was 'possibly because of the presence of a large amount of blood in the vagina.'

Dr. Ragsdale's testimony corroborated Dr. Lewis. Neither could definitely state that the 'large blunt object' which had caused the injuries was the penis of an adult male. Both testified that the prosecutrix had lost a great amount of blood and that the deepest injury was four inches. Dr. Lewis further testified that Trilene was used primarily to relieve pain during labor.

The court charged the jury on the law of circumstantial evidence.

Appellant contends that the evidence is insufficient to show penetration of the vagina of the prosecutrix by a male sexual organ. It is his contention that the testimony of the doctors raised a question as to the exact object which caused the injuries. He concedes that sufficient evidence exists that he fondled the girl, but contends that the child's injuries could just as likely have been caused by a finger, plastic cylinder, or stick.

Proof necessary to show carnal knowledge, under Article 1187, Vernon's Ann.P.C., is that: 'Penetration only is necessary to be proved on a trial for rape.' While proof of the slightest penetration is sufficient, this element of the offense must be proved beyond a reasonable doubt. e.g., Johnson v. State, Tex.Cr.App., 449 S.W.2d 65; Hash v. State, 139 Tex.Cr.R. 532, 141 S.W.2d 345; Watkins v. State, 78 Tex.Cr.R. 65, 180 S.W. 116; Baldwin v. State, 15 Tex.App. 275; Davis v. State, 43 Tex. 189.

Penetration may be proved by circumstantial evidence. e.g. Preston v. State, 157 Tex.Cr.R. 228, 242 S.W.2d 436; Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030; Word v. State, 12 Tex.App. 174. Where circumstantial evidence forms the basis for the conviction, the state must disprove every outstanding reasonable hypothesis except for the guilt of the accused for the evidence to be sufficient to support the conviction. See, Preston v. State, supra; Lozano v. State, 154 Tex.Cr.R. 229, 226 S.W.2d 118. There is no requirement that the prosecutrix be able to testify as to penetration.

'It would be a monstrous doctrine that villains who had rendered their victims insensible in order to effect their purposes should be freed from punishment because the victim could not swear positively to the act of penetration accomplished upon her during her state of insensibility.' Word v. State, supra, 12 Tex.App. at 183.

In the instant case the father of the prosecutrix testified that, shortly after the incident, appellant:

'. . . said that (the prosecutrix) came into his bed and asked him to rub her In her private parts, is the way he put it. And he did, and He got hot and took her.' (Emphasis added)

This statement by the appellant certainly infers that penetration was achieved. The evidence is undisputed that a large blunt object was forced into the child's vagina. Such object was larger than the child's vagina. Appellant contends that the answers given by the medical experts to hypothetical questions raised the outstanding hypothesis that an object other than the penis of an adult male was used. In support of this contention, appellant relies on the holdings of this court in Vasquez v. State, 167 S.W.2d 1030, and in Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704.

Vasquez v. State, supra, stands for the proposition that

'. . . the appellate court has frequently...