Williams v. State, 42013
| Decision Date | 16 April 1969 |
| Docket Number | No. 42013,42013 |
| Citation | 439 S.W.2d 846 |
| Parties | Joseph WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Charles E. Orr, Houston, for appellant.
Carol S. Vance, Dist. Atty., Houston, William W. Burge, and Edward B. McDonough, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is sodomy; the punishment, 8 years.
Trial was before a jury. Appellant pleaded not guilty and elected to have the punishment, if any, assessed by the court.
Appellant did not testify before the jury. At the hearing on punishment it was stipulated that he had been convicted and had served a term in the Texas Department of Corrections for felony theft, and had been convicted and served a term in jail for aggravated assault on a peace officer.
The state's evidence before the jury reflects that appellant was living with the mother of seven children, one of whom was eight year old Theresa, the girl named in the indictment (prosecutrix).
On August 19, 1967, appellant committed an assault upon Theresa's mother. The next day she went to the home of a neighbor because of her injuries. While she was away appellant told Theresa to go to a back room to play cards. Appellant came in, had her get on the bed; put his hand under her clothes and between her legs, kissed her and induced her to commit sodomy upon him with her mouth.
When Theresa's mother came home her neighbor came with her. Appellant said 'Here comes your mother, hurry up and fix your clothes,' and told Theresa not to tell her mother what happened.
Theresa did not tell her mother until after she and her neighbor had left and her mother had returned. At this time appellant was asleep and Theresa was for the first time out of his presence and alone with her mother.
When she told her mother what appellant had done, her mother took her to the neighbor's home and Theresa told the neighbor what had happened to her. The defense elicited from Theresa testimony that later she told appellant's mother, over the telephone, what appellant had done.
Appellant's first ground of error is: 'Prosecutrix' mother was permitted to testify to statements allegedly made to her by prosecutrix which, if made, would not constitute spontaneous statements, and were therefore admitted over objection in violation of the hearsay rule.'
The statements to which Theresa's mother was permitted to testify were made at the first opportunity when the mother and daughter were alone. The evidence reflects that at the time Theresa told her mother what had happened to her she was in an emotional state; was very upset and crying.
The contention that the statements were too remote in time from the act itself to be spontaneous and admissible statements is overruled. Wilder v. State, 169 Tex.Cr.R. 255, 333 S.W.2d 367; Haley v. State, 157 Tex.Cr.R. 150, 247 S.W.2d 400.
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