Vickery v. State

• Decision Date: 31 May 1978
• Docket Number: No. 54859,No. 2,54859,2
• Parties: Bobby Lee VICKERY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 624

566 S.W.2d 624

Bobby Lee VICKERY, Appellant, v. The STATE of Texas, Appellee.

No. 54859.

Court of Criminal Appeals of Texas,Panel No. 2.

May 31, 1978.

Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, J. R. Molina, Donald N. Turner and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.

Before ONION, P. J., and DALLY and VOLLERS, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for sexual abuse of a child. V.T.C.A., Penal Code, § 21.10. Punishment was assessed at four (4) years' confinement by the court following a guilty verdict.

On appeal appellant complains the court erred in refusing to allow him to interrogate the jury panel concerning the accomplice witness rule (Article 38.14, V.A.C.C.P.), that the court erred in failing to grant his motions for instructed verdict at the close of the State's case and again when all the evidence had been concluded on the ground that the complainant was an accomplice witness as a matter of law and his testimony was not corroborated, that the court erred in overruling his objections to the charge and his special requested charges that the court instruct the jury the complainant was an accomplice witness as a matter of law or submit to the jury the fact issue of whether the complainant was an accomplice witness. He also contends the court erred in overruling his objection and special requested instruction on the issue of whether the complainant was a child of sufficient discretion to understand the nature and illegality of the acts and if so, that he must be considered an accomplice witness whose testimony would require corroboration.

w______ r______ s______, fifteen years old, testified that on new year's eve, 1975 his parents took him to a friend's house in Watauga for the night as he and his friends were going squirrel hunting the next morning. They arrived about midnight. After watching television for awhile, everyone retired about 12:30 a. m. on January 1, 1976. w______ r______ s______ went to a bedroom which had a king size bed which he was to share with thirteen year old Darryl Dupree and the appellant Vickery. After Dupree had apparently gone to sleep, the appellant asked w______ r______ s______ if he "got hot at night," and upon receiving an affirmative answer, the appellant masturbated W______ R______ S______ and then placed his penis and then his finger in W______ R______ S______'s anus. The next morning the appellant again masturbated W______ R______ S______. After hunting for awhile, w______ r______ s______ went home shortly after noon. The next day he told a fifteen year old neighbor about the masturbation. Later he told Ronald and Donald Johnson, next door neighbor boys, about the incident in question. On March 31, 1976, w______ r______ s______ told Tommy Smith, stepfather of the Johnson boys, and on that date Smith took w______ r______ s______ to his father and the complainant for the first time told his father about the masturbation and act of sodomy. This was three months after the alleged offense.

On cross-examination he acknowledged that during the incident he was in pain but did not cry out, call for help or try to awaken the third person in the bed, or get up and walk away. He did testify that the appellant was taller than he was.

Appellant's father testified that on March 31, 1976 in the presence of Smith, his son had reported to him the events which had occurred at the Dupree home. The father then went to the authorities to file a complaint. These were the only two witnesses in the case.

Article 38.14, V.A.C.C.P., 1965, provides:

"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."

It has been said that an accomplice witness is a discredited witness because his testimony alone cannot furnish the basis for a conviction. Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269 (1956). It has long been held that an accomplice witness is a person who, as a party to the offense or under the law of criminal responsibility (V.T.C.A., Penal Code, §§ 7.01 and 7.02) (formerly principal, accomplice or accessory), was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether he was present and participated in the crime. Article 38.14, supra, Anno. Note 2.

The general rule provided by Article 38.14, supra, has long been the rule in this state. It is observed, however, that Article 38.07, V.A.C.C.P., was amended in 1975 to read:

"A conviction under Chapter 21, 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 court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim." (Acts 1975, 64th Leg., p. 479, ch. 203, § 6, eff. Sept. 1, 1975.)

Article 38.07 had formerly read:

"In prosecutions for seduction the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon her testimony unless the same is corroborated by other evidence tending to connect the defendant with the offense charged."

The changes wrought by the 1975 amendment are...