Sumner v. State
| Decision Date | 09 January 1974 |
| Docket Number | No. 47022,47022 |
| Citation | 503 S.W.2d 773 |
| Parties | Zane Harvey SUMNER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Gerald K. Fugit, Odessa, for appellant.
John Green, Dist. Atty., and Don E. Williams, Asst. Dist. Atty., Odessa, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for fondling. After the jury returned a verdict of guilty, punishment was assessed by the court at twenty-five (25) years.
In his sole contention, appellant urges that the trial court erred in allowing ten-year-old Tanya Sumner to testify.
Appellant urges that the trial court did not question the minor about her understanding of the oath nor was the witness asked questions that dealt with her intellect and familiarity with the transaction in question prior to her being examined before the jury.
Article 38.06, Vernon's Ann.C.C.P., provides in part:
'All persons are competent to testify in criminal cases except the following:
Prior to swearing Tanya Sumner (sister of the eight-year-old prosecutrix and daughter of appellant) as a witness the court questioned the prospective ten-year-old witness as follows:
'The Court: Young lady, you know what it is to tell the truth?
'Tanya Sumner: Yes, sir.
'The Court: You know you are supposed to tell the truth?
'Tanya Sumner: Yes, sir.
'The Court: You know it is wrong not to tell the truth?
'Tanya Sumner: Yes, sir.'
The minor witness was sworn and appellant's objection that the court was permitting her to testify without determining her qualifications and competency to testify was overruled. We further note that the following occurred on direct examination, prior to the witness being interrogated about the incident in question:
'
'
In the recent case of Fields v. State, Tex.Cr.App., 500 S.W.2d 500, where it was contended that the trial court erred in allowing a four-year-old witness to testify, this court said:
'The competency of a witness to testify is generally a question for determination by the trial court and its ruling in that regard will not be disturbed on appeal unless an abuse of discretion is shown. 61 Tex.Jur.2d, Witnesses, Secs. 67, 47; 4 Branch's Ann.P.C.2d Sec. 1945, p. 264. Melton v. State, 442 S.W.2d 687 (Tex.Cr.App.1969).
'As to appellant's contention that the witness did not understand the obligation of the oath, we find no specific question directed to witness concerning the oath he had taken. As earlier noted, however, he did indicate that he knew it was wrong not to tell the truth and that he would be punished or 'spanked' if he did not tell the truth.
'In Franks v. State, 166 Tex.Cr.R. 455, 314 S.W.2d 586 (1958), this court held that a child witness under nine years of age who stated he knew he would 'catch a whipping' if he told something which was untrue was a competent witness. See also Williams v. State, 439 S.W.2d 846 (Tex.Cr.App.1969).
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Martini v. State, 13-81-317-CR
...he will be punished if he does so is a competent witness even though he does not comprehend the meaning of an oath. Sumner v. State, 503 S.W.2d 773, 774 (Tex.Cr.App.1974); Fields v. State, supra, and cases cited therein. In Sumner the child explained that if she did not tell the truth "The ......
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Nixon v. State
...853 S.W.2d at 88. A child is usually deemed competent if she can tell the difference between a truth and a lie. Sumner v. State, 503 S.W.2d 773, 774-75 (Tex. Crim. App. 1974). The complainant demonstrated during the two hearings and guilt-innocence phase of trial her ability to intelligentl......