Sanchez v. State
| Decision Date | 22 March 1972 |
| Docket Number | No. 44463,44463 |
| Citation | 479 S.W.2d 933 |
| Parties | Egestpo 'Chippo' SANCHEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Chappell & McFall by Byron Chappell, Lubbock, for appellant.
Vernon D. Adcock, Dist. Atty., Lamesa, Jim D. Vollers, State's Atty., Austin, for the State.
DALLY, Commissioner.
The conviction is for the rape of a mentally diseased woman; the punishment, ten years imprisonment. 1
The prosecutrix's brother, who had worked with and who was a friend of the appellant, had recently died from injuries received in an accident. On the night of March 7, 1969, the brother's body had been taken to the home of another member of the family where it was to remain pending funeral services. In an apparent effort to find the home where the body of the deceased had been taken in order to pay their respects, the appellant and his brother went to the residence where the prosecutrix lived with her family.
When the two men arrived, they found only the prosecutrix, her two retarded brothers, and her eleven-year-old niece, Lupe Luera. The niece went with the appellant and his brother to help them find the home where the body of the deceased had been taken. When they were unsuccessful in finding it they returned. The men then asked if anyone else knew the whereabouts of the deceased, whereupon the prosecutrix nodded her head affirmatively. The appellant then 'got her by the arm and took her' to the pickup and 'pushed her inside.'
At about 9:00 p.m. a neighbor, Elida Sanchez, arrived at the home of the prosecutrix with two of the deceased's relatives. As she started to park behind appellant's vehicle, the man entering the truck motioned her to get her automobile 'out of the way,' whereupon she moved her The witness testified that from behind the pickup she could not clearly see the features of the people in it, but that she could see that the occupants were two men and a woman. 'When the truck left,' the prosecutrix's niece 'ran out and told (the occupants of Elida Sanchez's automobile) that two men took my aunt.'
The witness Sanchez then went to the home where the body of the deceased had been taken to determine whether the men had gone there with the prosecutrix. When it was learned that the three of them had not arrived, several persons left to look for the appellant's 'light-green' pickup. Taking part in the search was a fourth brother of the prosecutrix. At about 10:30 p.m. he saw a light green pickup parked beside a dirt road. When he turned onto the road, the truck 'took off.' He gave chase but turned his automobile over before catching the truck. He got close enough to see two people in the pickup but could not tell if a third person was between them.
The prosecutrix was not seen again until between 2:00 and 3:00 a.m. the morning of March 8, 1969, at which time she was seen walking toward her house. She was 'bending over, holding her stomach' and 'she had blood coming out of her mouth.' She was 'red, out of breath . . . her slip was out, and her bra was unbuttoned--unzipped . . . and the zipper on the dress was not up.'
Later that morning the prosecutrix was examined by Dr. David Smiley, who testified that her vaginal opening had been torn, that there was bleeding, and that his examination revealed the presence of sperm. Dr. Smiley testified that at the time of the examination the prosecutrix was extremely nervous and frightened and that it was his observation that she was mentally deficient.
The evidence shows that it was well known that the complainant was a mentally retarded girl. Although nineteen years old at the time of the trial, she had attended school only a few days in her lifetime. She was not permitted to leave her home unaccompanied by another member of her family. She understood only Spanish, an interpreter was used at the trial. Prosecutrix apparently could not testify audibly. Her response to interrogation both on direct and cross-examination was almost wholly by nodding her head in an affirmative or negative manner.
Dr. Smiley testified that 'you could ask her things a child ought to know of six or seven and she didn't seem to have that knowledge even.' With regard to his opinion of her ability to understand and resist the act of intercourse, he stated:
Dr. Smiley testified that the results of a pregnancy test given on April 24, 1969, were positive. Because of the complaining witness's mental deficiency, an abortion was performed.
Appellant and Manuel Sanchez were jointly charged with the offense, but only the appellant was on trial in this case. There was a two-count indictment. The first count alleges the rape of a mentally diseased woman, 'she then being so mentally diseased as to have no will to oppose said act of carnal knowledge and . . . the said Egestpo 'Chippo' Sanchez . . . did then and there well know her to be so mentally diseased.' The second count of the indictment alleges rape by force and threats.
Both counts were submitted to the jury. The jury found the appellant guilty under the first count, alleging the rape of a mentally diseased woman.
We deal first with appellant's ground of error which urges that 'The injured party was an incompetent witness and should not have been allowed to testify.' While we note that this ground of error was not raised in the trial court, we cannot and do not dispose of it on that basis because, in view of prior decisions, it is a fundamental issue in the case.
Prior decisions of this court which will be discussed have held that if the prosecutrix is offered as a competent witness by the State and she testifies, a conviction based upon a charge that prosecutrix was mentally diseased cannot be sustained. This court has consistently held that mere mental deficiency would not bring a woman within the protection of the statute. 2 The prior decisions have equated the statutory term 'mentally diseased' with the legal term 'insanity' as it is defined in the criminal jurisprudence of this State.
In Lee v. State, 43 Tex.Cr.R. 285, 64 S.W. 1047 (1901), the court said:
In Cokeley v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099 (1920), it was stated:
In Thompson v. State, 33 Tex.Cr.R. 472, 26 S.W. 987 (1894), the holding was that the evidence was not sufficient to submit to the jury a count alleging rape of a mentally defective woman where the complainant had been offered as a witness:
In White v. State, 109 Tex.Cr.R. 266, 4 S.W.2d 37 (1928), the first count of the indictment...
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Lane v. State, 14-04-00412-CR.
...testimony that appellant placed "his male organ into her private parts" was sufficient to sustain conviction); Sanchez v. State, 479 S.W.2d 933, 940 (Tex.Crim.App.1972) (holding that victim's affirmative answer to question about whether defendant "put his private part in your private part,"......
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Zigakol v. State, No. 14-04-01168-CR (TX 11/10/2005)
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Martinez v. State, 04-81-00104-CR
...her bodily functions and whose mental age was described as being that "of a child from one to two years old". In Sanchez v. State, 479 S.W.2d 933 (Tex.Cr.App.1972) 4 the issue was again "whether the evidence in (that) case (was) sufficient to support the jury's determination that appellant ......