Vasquez v. State, 28002

• Decision Date: 15 February 1956
• Docket Number: No. 28002,28002
• Parties: Reyes VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 100

288 S.W.2d 100

163 Tex.Crim. 16

Reyes VASQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 28002.

Court of Criminal Appeals of Texas.

Feb. 15, 1956.

Albert Armendariz and Mauro Rosas, El Paso, for appellant.

William E. Clayton, Dist. Atty., Edwin F. Berliner, First Asst. Dist. Atty., El Paso, and Leon B. Douglas, State's Attorney, Austin, for the State.

WOODLEY, Judge.

The conviction is for sodomy; the punishment, 15 years.

Appellant, a 23 year old citizen of Mexican extraction, born and reared in El Paso, in addition to attending a church school for a time, attended the El Paso public schools for five years, where instructions were carried on in Englich. Thereafter he worked at various jobs such as at the ice factory, parking cars at a parking lot and 'in a soda company selling soda'. He began drinking when he was 17. At first he drank every week-end after he received his pay, and later 'he got to drinking every day whenever he was able to buy it.' His drinking habits, according to the testimony, accounted for his employment being unsteady though he was 'working most of the time.'

His aunt, called as a witness in his behalf, testified that she had seen him drunk several times. Asked to tell how many times she had seen him drunk, she answered 'Well, I have no idea because there are so many times.'

On a Saturday afternoon a number of children were playing in an alley, among them being the 4 year old girl victim named in the indictment.

Appellant in a drunken condition made his appearance, and after a time took the little girl by the hand and led her away.

The United States Border Patrol maintains an observation tower some 150 feet in height, equipped with telephone, radio and high powered field glasses or binoculars, overlooking the river and railroad tracks in the vicinity of the Stantion Street Bridge.

Inspector Gamble, on duty in the tower on the afternoon in question, observed through the binoculars a man and child walking west along the railroad track some 75 yards east of the Stanton Street Bridge. They were some 15 feet from some 'willows' along the river bank and in the vicinity of a brick building referred to as the molasses factory, and were walking toward down town El Paso.

Inspector Gamble contacted his fellow Border Patrolman Herrera by two-way radio and continued to observe the man and child and to keep Inspector Herrera informed of their whereabouts until they were intercepted by Herrera.

Inspector Herrera testified:

'She was crying. I asked him what was the matter with her; if it was his daughter. He said, 'No', that she belonged to a friend of his. I asked him how come the child was with him. He said that he had seen another man with the child in Juarez, had her by the hand, and since he recognized the child as belonging to a friend of this, and knew where she lived, he was going to take her home. So then I asked him if he could take me so we could take the child home. He said, 'Yes'. We proceeded to the child's home.'

Arriving at the child's home the officers learned that the police had been notified that she was missing and a little boy had told the mother that a grown man had taken her away.

The boy was called but failed to identify appellant as the man who had led the child away, and he was released.

The mother of the child victim testified that when the officers brought her home: 'She was just crying and crying. She was hysterical and her face was sort of swollen and black and blue from where she had been hit--

'After I took her inside the little girl started crying and asked me for under clothes; that is, for her panties. I then undressed her because I knew she had had some panties on before. Then I saw her privates were bloody.

'Q. Where was the blood, Mrs. Acosta? A. In all her privates, inside, outside.

'Q. Did she have on under pants at that time? A. No, sir.

'Q. Did she tell you what happened? Did she say anything to you? A. She never has said anything. She never has wanted to say anything.'

The mother soon found the Border Patrolmen, who had departed, and reported to them and appellant was soon thereafter taken into custody and identified by several of the children, including the boy who had failed to identify him previously. He was lodged in jail and the child was taken to the hospital for examination.

Appellant was thereafter delivered to officers of the City of El Paso and, after sleeping for some two hours, made a confession which was admitted in evidence and reads:

'I, Reyes (none) Vasquez, after having been duly warned by Detective Phil Lopez, the person to whom this confession is made; that any statement made will be reduced to writing and signed by me and may be used in evidence against me on my trial for the offense concerning which this confession is herein made, wish to voluntarily state the following facts for the reason that said facts are true, viz.

'My name is Reyes Vasquez, and I am 23 years of age; I was born in El Paso, Texas, and at present consider the following address my home, 918 South Mesa Avenue.

'At about 1:00 P.M., on this date, I went to Juarez to drink some Tequila. All in all I think I drank about 15 shots and some beer. I then decided to come back to El Paso, I think it was around 3:00 in the afternoon then. I then headed for a bar at Stanton and 7th Streets and drank a few beers there at the corner bar. After that I headed for my home on Mesa Street. At home I ate a little and then went towards Kansas and Fifth Streets. I went in an alley where I saw some kids playing. I went over and sat down with the boys and girls and I started talking to them. I gave some money to some of the boys and girls that were playing there, so that they could buy some Ice Cream with it. I offered some milk that I had with me to some of the boys but they did not want any of it, so I threw it away. I then took the little girl's hand and led her away. I went south in the alley towards the river. I turned right at 6th Street and got on Kansas Street and headed south again. I then still had the little girl with me. We went across the railroad tracks and down the river bank and into the bushes. I took the little girl over to some water that is located on the edge of the river, I would say is about 10 feet from the bank. There me and the little girl played with a little fish that was swimming in the water. After a little while I picked the little girl up in my arms and carried her up the bank of the river. At this time I want to state that we were still on the American side of the Rio Grande River. I then layed the girl on the spot where I just got through showing you. This spot had bushes around it. I then took her little Levis off of her. Then I took her panties off. As soon as I took her panties off of her, I took them and threw them towards the river. I then took my middle finger and put it in her tail. She started to cry so I stopped for a little while. I then took the same finger and stuck it in her front private. The little girl started to cry again so I stopped. I then tried to stick my peter in her ass, but it was hard to get in. All the time that I was trying to get my peter in her ass, the little girl kept crying. I would say that all that I really got in the little girl's ass was about the head of my peter. When I saw that it was too much trouble to put it in I quit and then I put her levis back on her. I then took the little girl by the hand and started back over the railroad tracks. We got to about 10th and Kansas when some Immigration Officers stopped us and put us in the patrol car. They took us to where I had picked the little girl up. There they released me so I went to the bar on the corner and drank a couple of beers. When I was leaving the bar I was again arrested and taken to the Immigration Office where I was fingerprinted and turned over to some City Police.'

Dr. Frederick P. Bornstein, whose qualifications as an expert medical witness were admitted and stipulated, examined the child at 6 P.M. in the El Paso General Hospital. He described her appearance and findings in part as follows:

'A small child, about four years old, and the left side of the face was swollen.--I examined the entire body and injuries were found on her genitals and rectum--in that region. This part had been washed so there was no blood on the outside, however, some blood escaped from the female genitals. There was a small tear in the posterior wall of the vagina. In addition a skin tear was located between the vagina and the rectum. In addition a dirty stick protruded from the opening of the rectum. There was some yellowish fluid aspirating from the rectum, which we could not identify in detail on microscopic examination. We also aspirated fluid from the vagina which showed a mixture of blood and sand, and the microscopic examination showed the same blood, red blood cells, and foreign body material, which was probably plant material.

'Q. Plant material? Did you conclude from your professional examination of this child, Doctor, that she had suffered an active external injury to any of her parts? A. Yes.

'Q. What was your conclusion? A. My conclusion was that there was an active injury to the vagina, to the perineum, which is a part of the skin located between the vagina and the rectum, and to the rectum.'

Dr. Bornstein testified that the injury to the perineum could have been caused by the stick which somebody had inserted; that the injury to the rectum could have been made by a man's penis but the injury to the vulva could not, and in this connection, testified: 'Well, I don't think the vulva at this state of development can dilate sufficiently to permit that much entry of the penis to get in to produce an injury. On the other hand, the rectum at this stage could be dilated sufficiently to produce this, and that is not untrue anatomically in a small child. One thing is attempted and fail and the other thing is attempted. We...