Thompson v. State, No. 44071

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtDOUGLAS; MORRISON
Citation493 S.W.2d 913,93 S.Ct. 1411
PartiesC. W. THOMPSON, Appellant, v. The STATE of Texas, Appellee.
Decision Date02 November 1971
Docket NumberNo. 44071

Page 913

493 S.W.2d 913
C. W. THOMPSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 44071.
Court of Criminal Appeals of Texas.
Nov. 2, 1971.
Rehearing Denied Dec. 21, 1971.
Judgment Vacated Feb. 26, 1973. See 93 S.Ct. 1411.

Stuart Kinard, Houston (On Appeal Only), Fred Heacock, Houston, of counsel, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Frank Price, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This appeal is from a conviction for abortion. The punishment was assessed by the jury at two years.

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

The record reflects that C. W. Thompson, the appellant, was a licensed physician. On or about January 19, 1968, Ruby Lee Olin Rohne, the victim and prosecutrix, saw her physician, Dr. James A. Bloys, because her period was late and she was having a pain in the left lower part of her abdomen. Ruby Lee was then unmarried, had three children, and said she could not afford another child. Dr. Bloys gave her a pelvic examination and found some tenderness when the uterus was moved. He prescribed antibiotics to cover the possibility of pelvic infection. He also gave her produestron as an early pregnancy test and to start her period if she was not pregnant. She again saw Dr. Bloys on February 2, 1968. He then gave her a gravindex test for pregnancy, and the result indicated pregnancy.

According to the testimony of appellant's expert witness, Dr. Blanchard Hollins, a specialist in obstetrics and gynecology, the gravindex test is 94 to 97 percent accurate. Both Dr. Bloys and Dr. Hollins testified that only three pregnancy tests are conclusive: detection of fetal heartbeat, actual demonstration of fetal skeleton, and feeling the fetal movement. None of these can be detected before 16 weeks after conception according to Dr. Hollins' testimony. Ruby Lee was approximately eight weeks pregnant when Dr. Bloys gave her the gravindex test. Dr. Bloys indicated a fourth conclusive test of pregnancy which is recovery of a portion of the fetus following an abortion.

Three or four days prior to February 8, 1968, Travis Wall, the acknowledged father of the child and already married to another, called Dr. Thompson, the appellant, and told him he had a 'young lady with a

Page 915

problem.' He neither told Dr. Thompson that Ruby Lee was pregnant nor that she wanted an abortion but Wall 'took it that he understood what I was talking about.' On February, 8, 1968, Wall took Ruby Lee to see the appellant at his office on Dowling Street in Houston for the purpose of obtaining an abortion. Ruby Lee stated that the appellant asked her how long she had been pregnant, and she told him nine or ten weeks. She also related to him her desire to have an abortion. The appellant then left the room. A nurse took Ruby Lee into an examining room, told her to undress and covered her with a sheet when she lay on the table. The nurse then handed Ruby Lee a black object like a mask and told her to put it over her face and take deep breaths. The nurse told her that the doctor would be in shortly. The next thing she remembered was the nurse leading her back into the appellant's office some 45 minutes later. The appellant told Wall that Ruby Lee would be all right but if she had any problems to call him. No medication was prescribed. Wall paid the appellant $200.00 cash for the operation.

On February 10, 1968, Ruby Lee called Dr. Bloys at his home telling him about the abortion on Thursday (February 8) and that she was now having pain in the lower abdomen and bleeding. Dr. Bloys ordered pain medication for her and advised her to come to his office for further examination. Ruby Lee went to see Dr. Bloys on February 14, 1968. He gave her a pelvic examination and found her uterus enlarged and grossly tender and she was having a foul-smelling discharge from the mouth of the uterus. It was Dr. Bloys' opinion that some instrument had been used inside the vagina and uterus to cause an abortion which subsequently caused the infection. After unsuccessfully trying to control the infection with antibiotics, Dr. Bloys had her hospitalized on February 19 for approximately two weeks. While in the hospital a scraping was done on Ruby Lee and Dr. Bloys testified that the pathologist's report indicated recovery of fragments of an embryo.

The appellant testified that he had never seen Ruby Lee prior to trial, had never performed an abortion on her or any one else, and was not even present in his office on February 8, 1968. His alibi was corroborated by his wife, his secretary and his nurse. Others testified regarding the whereabouts of the appellant at different times on the day in question.

We will discuss the evidentiary questions first, then those related to constitutional issues.

In his fourth ground of error appellant contends that the evidence was insufficient to show that he ever treated Ruby Lee for anything at all since Travis Wall was an accomplice witness as a matter of law and other corroborating evidence does not tend 'to connect the accused with the commission of the offense.'

Travis Wall, the State's witness, testified on direct examination that he arranged for and took the victim to the appellant's office for an abortion.

It is the State's case that the appellant then performed this abortion. Wall could be a principal in the State's case, Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661, and is, therefore, an accomplice witness as a matter of law, Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108. As an accomplice witness his testimony must be corroborated by other evidence tending to connect the appellant with the offense committed. Article 38.14, Vernon's Ann.C.C.P. To warrant a conviction the accomplice may be corroborated by circumstances as well as by direct evidence. Cawley v. State,166 Tex.Cr.R. 37, 310 S.W.2d 340, cert. denied 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188 (1958). Ruby Lee was not an accomplice witness although she consented to procuring of the abortion. Bristow v. State, Tex.Cr.App., 128 S.W.2d 818. In addition to the testimony of the victim, the appellant testified that he was the only doctor practicing in that office since 1965. Ruby Lee gave no direct testimony that the appellant was the one who

Page 916

performed the operation since she was asleep. We find Ruby Lee's testimony to be sufficient to corroborate that of Wall and connect the appellant with the offense. See Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

Failure to instruct on the law of accomplice witness, especially where no charge was requested, is not reversible error where the evidence clearly warrants conviction independent of the accomplice's testimony. See Allen v. State, Tex.Cr.App., 461 S.W.2d 622; Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539; Haines v. State, 134 Tex.Cr.R. 524, 116 S.W.2d 399.

In his fifth ground of error appellant contends that the evidence was insufficient to prove that at the time Ruby Lee was carrying in her uterus a living embryo or fetus. It is necessary for the State to prove that the child was alive at the time of the alleged abortion. Tonnahill v. State, 84 Tex.Cr.R. 517, 208 S.W. 516. Dr. Bloys and Ruby Lee both testified that she was pregnant and in good health except for abdominal pain on February 2, 1968. Where a pregnancy is present the fetus is presumed to live and progress absent the showing of any intervening cause. Parnell v. State, 166 Tex.Cr.R. 239, 312 S.W.2d 506; Jordan v. State, 130 Tex.Cr.R. 182, 92 S.W.2d 1024.

We hold that the evidence was sufficient to support the jury verdict in that a pregnancy existed at the time of the alleged abortion, Jordan v. State, supra, and no intervening cause was shown.

In his sixth and seventh grounds of error the appellant contends the evidence was insufficient to show that appellant did anything or that an instrument was induced and inserted into the vagina and womb of Ruby Lee.

No direct evidence exists that any instrument was inserted into the vagina and womb of Ruby Lee since no one but appellant was in the room with her when the alleged abortion took place and she was unconscious. Dr. Bloys testified that his examination of Ruby Lee indicated that some instrument had been placed in her uterus and vagina causing the abortion. Dr. Hollins testified that this diagnosis could be erroneous. The evidence was, however, sufficient to support the jury's verdict that an instrument had been inserted by the appellant.

In his eighth ground of error the appellant contends that the conclusion that he did in fact produce an abortion and destroy the life of the fetus is insufficient as a presumption upon a presumption.

Here the evidence was sufficient to conclude that Ruby Lee was pregnant. It is presumed that since no intervening cause was shown, the fetus was living. The evidence was sufficient to support the jury's finding that an instrument was inserted into Ruby Lee's vagina and womb. The evidence was sufficient to link the appellant with the commission of the act of abortion. That the appellant produced the abortion and destroyed the life of the fetus is not a presumption built upon a presumption but was a reasonable conclusion of the jury based upon the evidence.

We find appellant's grounds of error four through eight on the sufficiency...

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34 practice notes
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34 cases
  • Soto v. City of Sacramento, No. Civ. S-79-680 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 24, 1983
    ...on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), reh'g denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970); Davis v. Murphy, 559 F.2d 1098, 1102 (7th Cir.1977). Others ......
  • Island Online, Inc. v. Network Solutions, Inc., No. CIV. 99-CV-6848 (DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 6, 2000
    ...See District of Columbia v. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602, 606, 34 L.Ed.2d 613 (1973), rehearing denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973). The proposition that federal actors do not act under color of state law is a well-established one. See Bordeaux v. Lynch,......
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    • United States
    • United States Supreme Court
    • January 10, 1973
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