Rangel v. State, 33668
| Decision Date | 22 November 1961 |
| Docket Number | No. 33668,33668 |
| Citation | 352 S.W.2d 275,171 Tex.Crim. 620 |
| Parties | Fred V. RANGEL, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
William J. Gillespie, Lubbock, for appellant.
George E. Gilkerson, Dist. Atty., and George H. Nelson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is indecent exposure to a minor child; the punishment, 3 years confinement in the penitentiary.
The State's evidence shows that the appellant was arrested around 4:30 P.M., on Christmas Day, 1959, at a theatre in the City of Lubbock by certain officers who had gone to the theatre to make an investigation. When the officers walked to where appellant was seated, they observed him pull the zipper up on his trousers.
The prosecutrix, 12 years of age, testified that on two separate days, December 24th and 25th, 1959, she went to the theatre with her 10 year old sister. She stated that on December 24th, they were seated in the middle section and appellant, while seated on the second row in front of them, was showing his 'private piper' which she explained is what a man uses 'to go to the rest room.' She stated that appellant placed his hand upon his 'private piper'; that she could see his private part and while he was so conducting himself, appellant was looking back 'cutting his eyes' towards them and making a 'hissing noise.' The prosecutrix testified that when she and her sister returned to the show on December 25th, appellant was in the theatre and she again saw his 'private piper' when her attention was directed to appellant making 'sort of a hissing noise' through his teeth.
The prosecutrix's 10 year old sister, upon being called as a witness, corroborated her testimony relative to appellant exposing his private parts to them on both days, December 24th and 25th. The prosecutrix's 13 year old brother testified that he was also in the theatre on December 24th and 25th. He testified that on December 25th, he saw appellant 'playing with his private parts' and at such time appellant made 'funny noises' to get his sisters' attention.
Appellant, testifying as a witness in his own behalf, denied going to the theatre on December 24th; admitted going on December 25th, but denied exposing his private parts on such occasion. Appellant admitted that when arrested the zipper on his trousers was partially open, but explained that it was broken. Appellant testified as to his whereabouts on the afternoon of December 24th and called his wife and other witnesses to corroborate his testimony.
At the conclusion of the testimony the State elected to rely on the transactions occurring on December 25, 1959, and the court so informed the jury in his charge.
The indictment alleges that the offense was committed 'on or about December 24, 1959.'
The State was not bound by the date alleged in the indictment and could prove that the offense was committed before, on, or after the date alleged so long as the date was anterior to the presentment of the indictment and not barred by limitations. Madeley v. State, ...
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...See and cf. Ball v. State, 163 Tex.Cr.R. 214, 289 S.W.2d 926 (Tex.Cr.App.1956) (correct as to intent); Rangel v. State, 171 Tex.Cr.R. 620, 352 S.W.2d 275 (Tex.Cr.App.1961) (intent); Blum v. State, 417 S.W.2d 66 (Tex.Cr.App.1967) (intent); Asay v. State, 456 S.W.2d 903 (Tex.Cr.App.1970) (reb......
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