Tyrone v. State

• Decision Date: 31 March 1993
• Docket Number: No. 2-91-326-CR,2-91-326-CR
• Citation: 854 S.W.2d 153
• Parties: Robert I. TYRONE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 153

854 S.W.2d 153

Robert I. TYRONE, Appellant, v. The STATE of Texas, State.

No. 2-91-326-CR.

Court of Appeals of Texas,

Fort Worth.

March 31, 1993.

Rehearing Overruled April 27, 1993.

Discretionary Review Refused Sept. 22, 1993.

Jim Shaw, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Betty Marshall and Charles Mallin, Asst. Chiefs of the Appellate Section, and David Curl, Malena Caledron, Steve Marshall, Asst. Crim. Dist. Attys., Fort Worth, for the state.

Before LATTIMORE, DAY and CLYDE R. ASHWORTH (Retired Sitting by Assignment), JJ.

OPINION

CLYDE R. ASHWORTH, Retired Justice.

Appellant, Robert I. Tyrone, was convicted by a jury of sexual assault under TEX.PENAL CODE ANN. § 22.011 (Vernon Supp.1993). The jury assessed his punishment at eleven years confinement in the Texas Department of Criminal Justice. He appeals both the guilty verdict and the punishment.

We affirm in part and reverse and remand in part.

I. FACTS

Appellant's indictment and conviction is for sexually assaulting a minor. The minor was his step-granddaughter. She was raised by appellant and her grandmother from the time she was a child.

At the guilt phase of appellant's trial, the trial court excluded evidence that appellant had fondled, performed oral sex on, and attempted penetration of the victim during her childhood. The trial court admitted this evidence at the punishment phase pursuant to this court's decision in Hunter v. State, which the court of criminal appeals recently overruled. Hunter v. State, No. 2-90-170-CR (Tex.App.--Fort Worth, Aug. 30, 1991) (not designated for publication), overruled, Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).

II. POINTS OF ERROR

Appellant brings five points of error. He argues: 1) TEX.PENAL CODE ANN. § 22.011(a)(2)(A) (Vernon 1989) is unconstitutionally vague because it fails to define "female sexual organ"; 2) the trial court erred in failing to instruct the jury on accomplice witness testimony; 3) reversal is required because the presiding judge was not sitting in Criminal District Court No. 2 pursuant to an administrative order; 4) the trial court erred in the punishment phase by allowing evidence of unadjudicated extraneous offenses pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.07 (Vernon Supp.1993); and 5) this application of article 37.07 constitutes an ex post facto violation.

III. HOLDING

We overrule appellant's first point of error because the statute clearly applies to him; therefore, he cannot successfully challenge the statute's alleged vagueness. We overrule his second point of error because the victim is not an accomplice as a matter of law and the applicable statute does not require that her testimony be corroborated. Appellant's third point of error is overruled because the retired judge was duly authorized to sit; therefore, he could exchange benches with another judge without a formal exchange order.

Appellant's fourth point of error is sustained because the admission of unadjudicated extraneous offenses was erroneous and an abuse of discretion. For this reason, we do not address his fifth point of error.

IV. ANALYSIS

A. Appellant Failed to Meet the Prerequisite for a Vagueness Claim

Under his first point of error, appellant argues that TEX.PENAL CODE ANN § 22.011(a)(2)(A) (Vernon Supp.1993) is unconstitutionally vague on its face. The statute states:

(a) A person commits an offense if the person:

(2) intentionally or knowingly:

(A) causes the penetration of the anus or female sexual organ of a child by any means....

Id. (emphasis added). He argues that the statute fails to provide the public with adequate notice as to what is meant by the term "female sexual organ." However, he does not make a showing that the statute is unconstitutional as applied to him. The evidence is that he fully penetrated the victim's vagina. This conduct is clearly proscribed by the statute. Aylor v. State, 727 S.W.2d 727, 730 (Tex.App.--Austin 1987, pet. ref'd). A defendant cannot successfully challenge the statute for vagueness when it clearly applies to his conduct. Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). Because the statute clearly applies to appellant's conduct, we overrule his first point of error.

B. A Minor is Legally not an Accomplice to Statutory Rape

In his second point of error, appellant argues that the trial court erred in failing to instruct the jury on corroboration of accomplice witness testimony. He relies on TEX.CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1979), which requires the corroboration of accomplice witness testimony, and Brown v. State, 657 S.W.2d 117 (Tex.Crim.App. [Panel Op.] 1983). The court of criminal appeals in Brown held that "a female who consents to or voluntarily enters into an incestuous intercourse is an accomplice witness." Brown, 657 S.W.2d at 118. Reading Brown and article 38.14 together, appellant contends that his victim was an accomplice because this is a statutory rape case and the indictment does not allege that the victim did not consent to the sexual intercourse.

First, we note that Brown is inapplicable here as it was not determining whether a victim of statutory rape could be an accomplice. In Texas, the longstanding rule has been that a minor cannot legally consent to statutory rape, therefore the minor is not an accomplice. Scoggan v. State, 799 S.W.2d 679, 681 (Tex.Crim.App.1990); Hernandez v. State, 651 S.W.2d 746, 749-51 (Tex.Crim.App.1983) (opinion on reh'g). Because a minor cannot be an accomplice, the State did not have to corroborate that minor's testimony to obtain a conviction for statutory rape. Hernandez, 651 S.W.2d at 751. While appellant did not discuss Hernandez in his brief, to address his argument we must determine whether the rule espoused by Hernandez is overruled.

No case directly overrules Hernandez, but a month after it was decided, the state legislature enacted TEX.CODE CRIM.PROC.ANN. art. 38.07 (Vernon Supp.1993) (the "Outcry Statute"). The statute clearly affects the Hernandez holding. Scoggan, 799 S.W.2d at 683. It states:

A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years of age at the time of the alleged offense.

TEX.CODE CRIM.PROC.ANN. art. 38.07 (Vernon Supp.1993). The court of criminal appeals, when interpreting the legislative history of this act, specifically stated "we can find no evidence in the legislative history from 1975 of any intention to alter the longstanding rule that the testimony of a minor victim who cannot consent to sexual acts requires no corroboration or outcry in order to support a conviction." Scoggan, 799 S.W.2d at 682. The court held that the statute simply "requires stricter proof when the sexual assault victim is 14 or older." Id. at 683.

We will not hold that a statute which simply requires stricter proof in some statutory rape cases also overrules the law that minors are not accomplices to statutory rape. A holding that minors can legally consent to statutory rape would require the State to either disprove consent or corroborate every minor's testimony, regardless of whether the minor was younger than fourteen or made the required "outcry." There is nothing to suggest that the legislature meant the Outcry Statute to have this effect and such a reading of the statute would be unreasonable.

The longstanding rule that a minor cannot legally consent and is not an accomplice to statutory rape is still the rule in Texas. Because the victim in this case was a minor, she was not an accomplice as a matter of law and article 38.14 is inapplicable.

Even so, the victim was fifteen when the offense occurred, so the State had a heavier evidentiary burden. It met this burden by producing testimony from the victim that the offense occurred in December and that she told her boyfriend about the incident prior to March or April. She made the requisite "outcry" within the statutory period. Thus, the trial court correctly refused to give the jury an instruction on corroboration. Appellant's second point of error is overruled.

C. A Duly Authorized Retired Judge May Exchange Courts Without an Order

In his third point of error, appellant asserts that reversal is required because the judge who presided over his trial did not do so pursuant to an order. The transcript reveals that the presiding judge was a retired judge assigned to sit in Criminal District Court No. 3. The assignment was made by the presiding judge of the eighth administrative judicial district pursuant to sections 74.056 and 75.002 of the Texas Government Code. The problem appellant complains of is that the judge conducted appellant's trial in Criminal District Court No. 2, instead of presiding in Criminal District Court No. 3.

Appellant argues that where there is no order of assignment from the administrative judge to the particular court in which the case was tried, reversal is required independent of whether a trial objection was made. For his argument, appellant relies on Herrod v. State, 650 S.W.2d 814, 817-18 (Tex.Crim.App.1983).

In Herrod, the court of criminal appeals considered a case where there was no order of assignment from the presiding judge of the administrative section. Id. at 817. This presented further problems because there was no proof on the record that the regular judge was absent, disabled, or disqualified, or that the retired judge executed the necessary bond and took the necessary oath of office. Id. Thus, the court was specifically dealing with a question of authority of a retired district...