Vasquez v. State

• Decision Date: 21 October 1942
• Docket Number: No. 22198.,22198.
• Citation: 167 S.W.2d 1030
• Parties: VASQUEZ v. STATE.
• Court: Texas Court of Criminal Appeals

167 S.W.2d 1030

VASQUEZ v. STATE.

No. 22198.

Court of Criminal Appeals of Texas.

October 21, 1942.

Rehearing Denied February 10, 1943.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Johnny Vasquez was convicted of rape, and he appeals.

Judgment reversed, and cause remanded.

J. Fielding Jones and J. L. McGarity, both of Austin, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Johnny Vasquez was convicted by a jury in Travis County on a charge of rape and was assessed the penalty of death, from which this appeal comes.

Appellant is a Mexican, a minor, but married. He and his wife were working for W. C. Kelley, who lived near Austin, it appearing that appellant's wife was assigned to the special duty of caring for their eight-year old daughter, Barbara Kay, who was not in good health, being a sufferer from sinus trouble. On the 14th day of May, 1941, in the afternoon, the little girl accompanied appellant to the barn, where he went to treat the sores on a dog or to get eggs, as the child understood. Soon after they reached the barn appellant's wife called for the little girl and she returned immediately to the house. The child was not offered as a witness in the case, but the grandmother, who was there, testified regarding her condition and what she said had occurred, as follows: "She was excited and nervous as could be, and could not stay still. Barbara told me she went down there and they went in the barn to see if they could find some eggs, and the first thing Johnny did he pulled her pants down and said, `Let's do something', and then he got some grease and put it on her and on him, too, and then he took something out of his pants about this long and tried to get her to put her hands on it, and she would not. She said he tried to kiss her on the side of the face and she tried to hit him, and he held her arms. Her back was red, and she had grease all over her. She said he told her not to let any of us bathe her; for her to bathe herself, and for her not to put her hands down there while she was around any of us. She said it hurt her, and that he put grease on her and on him, too. I examined her enough to see that she was greasy and was red. I never noticed her clothes particularly, but they had hay in them, as did her pants and her hair."

The father and mother of the child were working in the city and returned that evening to their home a little earlier than the usual hour. After having their supper, they released appellant and his wife from their duties and permitted them to go to town. When they had gone, the grandmother told the parents what had occurred. An investigation followed which resulted in the arrest and conviction of the appellant.

Appellant had been convicted as a juvenile for a similar offense and was under a suspended sentence. Being under the impression that he was still a juvenile, the State proceeded to have this revoked and during the procedure introduced in evidence the story of the crime for which this conviction was had. It afterwards appearing that he was subject to the jurisdiction of the District Court, a charge was filed against him and the grand jury returned an indictment.

Appellant's efforts in the defense of his case are directed chiefly in support of the contention that the court erred in not sustaining his plea to the jurisdiction of the court and plea of former jeopardy on the theory that the evidence in this case was used in the hearing to revoke the suspension of the sentence in the former case. This contention cannot be sustained and, in our opinion, need not have further consideration as it is wholly without merit.

The one question presented in the appeal which has given us most concern relates to the failure of the court to instruct a verdict of not guilty because of the insufficiency of the evidence.

In addition to the statement quoted from the grandmother, appellant made a voluntary statement of the affair on the 17th day of May, 1941, from which we quote the following pertinent statement as placed in evidence by the State: "Last Wednesday, May 14th, 1941, I took the little girl down to the barn with me to get some eggs. At that time I was doctoring Mr. Kelley's little dog for some sores he had on him; I put some salve on the dog. The little girl was there with me and I pushed her down on the hay, pulled down her pants and put some salve on her between her legs. I unbuttoned my pants, pulled my peter out, and put some salve on it; I tried to get her to feel my peter but she would not do it; I then got on top of the girl and while I was on her I kissed her near her ear. I was playing with the little girl and was on top of her when I heard my wife call and I let her up and she ran out of the barn."

On the 16th day of May following the trouble, Dr. McIlhenney, the family physician, was called to examine the little girl, and testified as follows: "I then went into the bed-room of the child, and she was lying on the bed quite frightened and very emotional, and I could easily see she had been put through a tremendous mental strain. I examined her from beginning to end, starting at the top of the head and going all the way down. When I examined the vulva there was no question about there being marks of contusion and irritation that could have occurred only by the introduction of an outside something — a foreign body, whether human or otherwise. The hymen was partially intact, but was quite red, showing there had been some irritation or breakage there. Unquestionably it was such a contusion or breakage that could have been caused by the introduction of a male penis."

On cross-examination he stated further:

"Q. Could it possibly have been caused from a stick? A. From the portion of the body it might have been, but from examining bruises of that sort before, and examining that child after, there was no evidence by which I could possibly substantiate that.

"Q. You say the hymen was partly intact? Elaborate on that. A. The hymen is the little closed portion of the vulva that is present there at birth. Very, very rarely is it intact for very long. Almost invariably it is broken."

On re-direct examination the witness testified: "There was no question about there being definite evidence of penetration, to my mind, from my examination. The little girl, just brought into the court-room is Barbara Kelley, whom I examined. I examined the child at her grandmother's home in Austin the day after the occurrence."

The foregoing constitutes the full statements from the evidence upon which the State relies for a conviction. We think it insufficient. Lacey v. State, 137 Tex.Cr. R. 87, 127 S.W.2d 890.

In a prosecution for rape, it is essential to prove penetration of the female organ by the male organ of the accused. This may be done by circumstantial evidence, though it is more frequently used to corroborate direct testimony. Logan v. State, 66 Tex.Cr.R. 506, 148 S.W. 713; Jones v. State, 69 Tex.Cr.R. 265, 153 S.W. 136; Bryan v. State, 90 Tex.Cr.R. 175, 234 S.W. 83; Blumenthal v. State, 98 Tex. Cr.R. 601, 267 S.W. 727; Petty v. State, 94 Tex.Cr.R. 114, 249 S.W. 849; Galaviz v. State, 82 Tex.Cr.R. 377, 198 S.W. 946; Doherty v. State, 84 Tex.Cr.R. 552, 208 S.W. 932; Word v. State, 12 Tex.App. 174; 35 Tex.Jur. sec. 58, p. 847. Unless there is such proof the State has failed to prove the corpus delicti.

We have reviewed the record of a great many cases similar to the one before us and find that even where the injured party testifies in the case the facts and circumstances are scrutinized with more than ordinary care. Blackmon v. State, 87 Tex.Cr.R. 173, 220 S.W. 93; Sralla v. State, 97 Tex.Cr.R. 648, 263 S.W. 911; Conner v. State, 111 Tex.Cr.R. 38, 11 S.W. 2d 169; Gazley v. State, 17 Tex.Cr.App. 267; Petty v. State, 94 Tex.Cr.R. 114, 249 S.W. 849. Where evidence is available to the State which would give direct and positive statements on the subject of penetration but the State has failed to use it, its failure is a strong circumstance against the prosecution and, it appears, should be considered a barrier which the State must surmount with more than ordinary diligence. Such we view the present case to be. The little girl was nervous and exited and this was relied upon as a reason for the State not offering her as a witness, though she was an unusually smart child. We do not believe that it is sufficient under the facts stated to defeat the right of the accused to be confronted by the witness against him. The writer shares all of the sympathy which the State and the jury may have had for the child in her unfortunate situation and would like to relieve her completely of the embarrassment, but it would set a precedent too dangerous to be sanctioned. It would be better that a guilty person may go unpunished than that this important provision of our Constitution should be ignored. The rights of the accused in the instant case, however important to him, are infinitesimal when compared to the rights of the millions which are protected by the constitutional provision involved.

It will be noted from the grandmother's testimony that the child said that the accused approached her with the statement, "Let's do something", which a child of that age might have understood or might have misunderstood. Her cross-examination, with other statements, undoubtedly could have made it more positive if the worst were true. She said that the accused "put some grease on her and on him, too, and then took something out of his pants about this long and tried to get her to put her hands on it." She said that he tried...