Voight v. State

• Decision Date: 30 November 1983
• Docket Number: No. 13-83-054-CR,13-83-054-CR
• Citation: 662 S.W.2d 420
• Parties: William A.J. VOIGHT, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 420

662 S.W.2d 420

William A.J. VOIGHT, Appellant, v. STATE of Texas, Appellee.

No. 13-83-054-CR.

Court of Appeals of Texas Corpus Christi.

Nov. 30, 1983.

Rehearing Denied Dec. 29, 1983.

James M. Whitten, Sinton, for appellant.

Thomas L. Bridges, Dist. Atty., Sinton, for appellee.

Before NYE, C.J., and YOUNG and UTTER, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction of aggravated rape. The jury assessed punishment and the trial court sentenced the appellant to twenty years in the Texas Department of Corrections.

This case involves an alleged rape of a six-year old child. Appellant urges in his sole ground of error that the trial court erred in denying his Motion for Instructed Verdict because the state's circumstantial evidence was insufficient as a matter of law to connect the appellant with the commission of the offense of aggravated rape.

Because of the youth of the child involved in this incident, the testimony of all of the witnesses will be reviewed here to get a complete understanding of the events of the evening of the alleged incident. On November 8, 1982, the victim's mother brought the victim and her other child, also an infant, to the home of Vicky Thompson (a friend). Thompson occupied the home with her two children and her boyfriend. The appellant, a friend of Vicky Thompson and her boyfriend, was also present at the house. The victim's mother testified that she left her two children with the appellant while she went to check on her husband, who was in jail. Vicky Thompson's children, a child 6 years old and another 7 years old, were also left at the home with the appellant. The victim's mother testified that she returned to Thompson's home the evening of November 8, 1982 at about 9:30 p.m. "for a little bit," then left the house again and returned about 2:00 a.m. the next morning. When she returned, she found the appellant asleep under the bedcovers. Her child, the victim, was also asleep in the same bed. She testified that the child was naked. Vicky's son was asleep on another bed in the same room. The mother, who testified that she had been drinking, did not notice any bruises or marks on her child in the early morning hours when she picked up the child. She testified that the light was dim, and she could not see too clearly in the light. She testified that she put the child's jeans on and took her home. The child woke momentarily when the mother put her in the car, but went back to sleep. She testified that when she got home she placed the child in bed. The next morning, the mother noticed the child had "lines and red spots" on her neck. The child told her that appellant had done it to her. The mother then took the victim to the doctor that morning.

L______, a seven-year-old male child, testified that he was sleeping in a bed next to a bed where appellant and the victim were lying. He testified that he knew that they were there because he heard them talking. He testified, "Well, he (appellant) said something, 'suck my pean.' " He testified he heard the victim say something about "It's hot" and "It's hot" and "Get off." Later, he admitted that appellant did not use the word "pean" but used instead the word "dick." The 7-year-old boy testified that he had not used that word ("dick") originally because he did not like to use that word.

Dr. Fred Warren testified that on November 9, 1982, he examined the victim. He said there were areas of discoloration on the sides of her neck, areas of bruising, black eyes, areas of hemorrhage between the white portion of the eyes, swelling and tenderness over the left side of her head. On examination of the genitalia, the doctor noted swelling and discoloration to the lips of the vagina. There was evidence of recent interruption of the hymenal ring and serosanguineous blood-tinged discharge from the vagina. He testified that, based upon his physical examination, the sexual organs of the child had been penetrated within 12 hours of his examination. Dr. Warren testified again during the defense part of the case that the victim had told him that appellant had used his hands on her genitals. He further asked her if she had any contact with appellant's penis, utilizing a word familiar to the child's meaning of penis. She shook her head that she did not. The doctor testified that there was a probability of penal penetration, but admitted that there also existed the possibility there was some other means.

Dr. Alexander Lyster testified that he analyzed the slide of a vaginal smear which had been prepared by Dr. Warren during his examination of the victim. He testified that he found sperm. He didn't count the number, but Dr. Lyster said that sometimes in a case such as this he might have to look a long time before he could identify a sperm, but, in this case, he had no trouble finding sperm on the slide.

The victim, six years old at the time of the incident, identified the appellant as the individual who choked her at L______'s house in the bedroom. She testified she was in her clothes, and the appellant was in his clothes. She did not remember if appellant did anything else to her besides choke her.

The definition of rape of a child in TEX.PENAL CODE ANN. § 21.09 (Vernon Supp.1982-1983) in pertinent part reads:

(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.

Aggravated rape is defined by TEX.PENAL CODE ANN. § 21.03

(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:

(5) the victim is younger than 14 years.

The trial court in this case properly instructed the jury on circumstantial evidence. In cases based upon circumstantial evidence, the evidence must be sufficient to exclude beyond a reasonable doubt every reasonable hypothesis except the guilt of the appellant. Nathan v. State, 611 S.W.2d 69 (Tex.Cr.App.1981); Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980). Every fact need not point directly and independently to defendant's guilt. It is enough if the conclusion is warranted by the cumulative force of all of the incriminating circumstances. Nathan v. State, 611 S.W.2d at 75. Each case must, of course, be tested by its own facts. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976). Circumstantial evidence does not require that the circumstances should to a moral certainty actually exclude every hypothesis...