This is an appeal from a conviction for indecency with a child, denounced by V.T. C.A., Penal Code § 21.12(a)(1),
An essential element of the offense of indecency with a child is the mental state that accompanies the forbidden conduct: the specific intent to arouse or gratify the sexual desire of any person. Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976); Clark v. State, 558 S.W.2d 887, 891 (Tex.Cr. App.1977). In his first ground of error appellant contends there is "no evidence"
September 18, 1977, during the late morning hours of that Sunday, one six and two seven year old girls
The girls were approached by a man in a car who told them he was looking for a lost dog and there was a reward of twenty five dollars for finding it; he asked them to help and Karen and Megan agreed, but Becky went to the house.
For some time, perhaps thirty minutes, usually on directions from the man, the two girls walked to and for while the man drove around in his car, meeting them at various locations behind one building or another. The first time was behind the "Cleaners." At one point near the Promenade Center the man left his car and asked Karen to take off her tennis shoes and let him look at them, representing that he wanted his daughter to get some. The he directed them to go to the nearby unfinished construction site where he would drive to meet them. After they all arrived he pointed out an apartment for Megan to look into for the dog, while he and Karen went to another one. There he suggested climbing some stairs to the second floor; once the they were shortly accosted by Wilhelm who, having
Still purportedly looking for the dog, the man told Karen and Megan to go with him back behind the Cleaners. Once again, as she was sitting on a "bench" and Megan was standing nearby on "a long piece of wood," the man asked Karen to remove her tennis shoes, which she did. Kneeling down before her, the man remarked that he was "a child's doctor," was going "to see if she were clean," undid her pants, pulled them down to knee level and touched her "in front there,"
The incident was over in a moment. The man told her and Megan to go, got in his car and parted saying, "I'll meet you tomorrow about 2:00 o'clock...." Denying she
Appellant was identified by Karen and Wilhelm as the man. No other witness to the events could or did.
Now, in asserting "no evidence" of the requisite intent to arouse or gratify his sexual desire, which the jury was charged it must believe from the evidence beyond a reasonable doubt, appellant reports that exhaustive research has not discovered any prior decision under the old law
The primary constant we note is that the man directed the girls to go to and meet him at some particular location; they always walked while he drove in his car — never were the girls invited to, nor did they, ride with him. From this, competing inferences occur, but when that circumstance is coupled with another common characteristic one begins to believe that the man was avoiding being seen with the girls in areas where the members of the public might be on that Sunday morning. Thus, every location
The next point of significant conduct by the man is the whole scene at the construction site. First, he manages to separate the two girls, sending Megan to one unit by herself and taking Karen to another, and climbing stairs to a second story. Thus he farther isolated Karen and, for the first time ever, made physical contact with her: he placed his hands around her waist and lifted her up to look in the "basement," ostensibly for a lost dog. Though Wilhelm seems not to have seen this movement, he was informed immediately upon inquiry that the man was looking around with the thought of renting — nothing about a lost dog. Then, again according to Karen, as they were leaving with Megan, the trio went by Wilhelm and this time the man said he may want to rent and also had the conversation about a lost dog and one Wilhelm had seen by the Promenade Center. A perfectly reasonable inference from all of this is that the first explanation to Wilhelm in the unfinished unit was a pretext and the second conversation purely a cover to coincide with what he had been telling the girls the venture was about. A jury could at this point deduce that neither stated purpose was real, and the whole thing a ruse.
From the Promenade Center, they met again behind the Cleaners, the first location to which the man had initially directed the girls. (Had he been all along scouting the territory and, evicted from the duplex unit, decided to return to the rear of the Cleaners?) Here the bit about having Karen take off her shoes becomes an intriguing piece of the entire business. She had already earlier removed them once for his inspection while they were near the Promenade Center the first time. Such a repetition of professed inordinate interest in a child's tennis shoes surely suggests that it too is a ploy with something else in mind.
So, when the man kneels down in front of the shoeless child, makes a statement of what he is going to do in order "to see if she is clean"
Finally, his parting comment, that he would meet Karen the next day at a given time, indicates clearly that this forty one year old man had in mind a repeat performance — one having nothing to do with a lost dog or renting a duplex.
We adhere to the general proposition reiterated in Bowles v. State, 550 S.W.2d 84 at 85-86, and hold that in a prosecution under § 21.11(a)(1) as well as one pursuant to § 21.11(a)(2), the requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances. See also Turner v. State, 600 S.W.2d 927 (Tex.Cr.App. 1980). Accordingly, we find that the State discharged its burden of proving, and that the jury had before it sufficient evidence to support its conclusion that the man, who it found to be appellant, touched the genitals of Karen with the specific intent to arouse and gratify his sexual desire. The first ground of error is overruled. Turner v. State, supra, and Bowles v. State, supra.
In his second ground of error appellant complains that the trial court erred in overruling his motion for a directed verdict at the close of evidence. Particularly, appellant contends that since he did not testify, the State, having elicited from its witnesses his representation that he was a child's doctor
As controlling value the holdings of Otts, Simon and Asner may be quickly dismissed for, while each contains general statements going into some aspect of the problem, the question in each was precisely whether failure of the court to charge on the law of exculpatory statements constituted reversible error: Otts, at 1086; Simon, at 443-444; Asner, at 827, 828. As we have already pointed out, ante, at n. 19, in the case at bar such in instruction, just as requested by appellant, was given, and the jury found the remark untrue. The Otts question, therefore, is not in the case.
Still, "[t]he rule is well settled that where the State introduces an exculpatory statement or confession of a defendant it is then bound to disprove it and failure to do so is grounds for acquittal," Grady v. State, supra, at 771. Thus, whether the trial court erred in overruling the motion for directed verdict depends what application of law it made to the evidence after both parties had closed. Having related the latter and inferences reasonably drawn therefrom in ruling on ground of error one, we need not reiterate them.
First, the trial court would have been justified in concluding that the statement to Karen was "a means of committing the offense;" "a statement made for the purpose of committing a crime is not an exculpatory statement," Grady v. State, supra, at 771; see also Peaden v. State, 491 S.W.2d 136, 139 (Tex.Cr.App.1973). Such contemporaneous declarations may be regarded as "an effort and scheme to shield himself from the force and effect of his presence at the scene" of the offense, Gibson v. State, 53 Tex.Cr.R. 349, 110 S.W. 41, 48 (1908).
Second, the trial court could have concluded, as the jury would that the statement was untrue. "The term `exculpatory' is defined as clearing or tending to clear from alleged fault or guilt. Brown v. State, 475 S.W.2d 938, 955," Davis v. State, 501 S.W.2d 101, 103 (Tex.Cr.App.1973); but the State is not required to disprove an utterance of the accused adduced by it unless, if true, the statement tends to exculpate or exonerate the accused. Medina v. State, 164 Tex.Cr.R. 16, 296 S.W.2d 273 (1956) and cases cited at 274.
Finally, that appellant was truly asserting a purpose to see if the genitals of the child were clean does not reasonably rule out a lascivious intent — an intent to
With respect to punishment there are complaints of an exchange during crossexamination of appellant initiated by a question whether appellant was under the care of a psychiatrist and two lines of argument to the jury run by the prosecutor. We perceive error in the fifth ground of error and, perforce, will not discuss the others, for in the event of a retrial they are not likely to occur.
In this closing argument on punishment the assistant district attorney first noted appellant had not presented character witnesses
The State now undertakes to justify its line of argument by citing only Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974) where the Court restated that "the prosecution has the right to comment on the accused's failure to call competent and material witnesses," id., at 897.
There are authoritative cases granting the prosecution the right to comment on the failure of an accused to call "any witness to attest to his good reputation," Scarborough v. State, 171 Tex.Cr.R. 83, 344 S.W.2d 886, 890
Appellant has testified on or about February 15, 1978 that he formerly lived in Round Rock in 1976, moved to San Antonio, and after an unspecified period then lived at an address in Austin's Northwest Hills; four months before his trial he married
Who the assistant district attorney "thought" appellant might call to testify and what each was expected to say were, for the most part, simply personages and products of his own imagination.
Finally expressing the "thought" that "they might call a parent up here to say they'd make a little girl available to molest" was the cruelest cut of all. Just before his
Proper jury argument is that which summarizes the evidence, makes reasonable deductions from the evidence, responds to argument of opposing counsel and pleads for law enforcement. Todd v. State, 598 S.W.2d 286, 296-297 (Tex.Cr.App.1980). For a prosecutor to argue outside the record and inject personal opinion is improper. Romo v. State, 593 S.W.2d 690, 694 (Tex.Cr. App.1980); Hurd v. State, 513 S.W.2d 936, 941 (Tex.Cr.App.1974). Such is the essence of the argument under consideration, and we find it off limits. See Berryhill v. State, 501 S.W.2d 86, n. 1 (Tex.Cr.App.1973).
Still, this Court "should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful and prejudicial..., Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548, 550 (1922); Todd v. State, supra. In our best judgment this argument was all of that and, for much of the same reasons advanced in Irving v. State, 573 S.W.2d 5, 6 (Tex.Cr.App.1978), "we are not left free to speculate that the error in the prosecutor's argument had no effect on the punishment assessed by the jury," as well as its rejection of probation for which appellant, with his impeccable background, was fully eligible. Particularly is the principle applicable where, as here, evidence of guilt is meager though sufficient.
Accordingly, the last ground of error is sustained.
The judgment is reversed and the cause remanded.
DALLY, J., concurs in result.
(Karen became "scared" as she was relating the sexual contact, but that she was traumatized by having to demonstrate the point of his touching on her doll is evident from the record. This then seven year old child, doubtless having been taught to avoid the very conduct, was being asked to demonstrate on a favorite doll that which she had been forbidden to do and what the man was being prosecuted for doing to her. Well aware of the difficulty in bringing out the required facts from a prosecutrix of tender years, still we cannot commend compelling her to perform such a demonstration. This is not to fault the trial judge for he did not initiate the procedure; rather, once it was underway without objection he clarified the matter and without the statement of his observation reflected in the record resolution of the issue would be much more troublesome.) The evidence is sufficient to support the allegation in the indictment of "touching the genitals." Tyra v. State, 534 S.W.2d 695, 697 (Tex.Cr. App.1976); Ball v. State, 163 Tex.Cr.R. 214, 289 S.W.2d 926, 928 (1956).
Appellant objected to statements made by the prosecutor to the effect that after thinking about "the facts of this case, about this man" he submitted "a proper punishment" would be ten years confinement, that "I think the facts call for nothing less." Appellant sees this as a representation to the jury of "his superior qualifications to determine the proper punishment based on the facts of the case as he knew them," rather to the facts of the case in evidence. While we are without benefits of hearing the manner in which the words were spoken and the like, we do not read that imputation into the statements, and doubt the jury understood them that way.
We must observe that the former district attorney representing appellant is generally correct for, according to one scholar, "It is commonly stated that the character of a person ... is presumed to be good until impeached," though it seems doubtful "there is any true presumption in regard to good character," for, as he opines, "All that the courts mean is that since persons are usually of normal moral character, it would be a foolish waste of time to prove that which may be assumed to exist." Nevertheless, the inevitable exception here is that an accused may offer evidence with respect to the particular character trait involved in the charge. See Ray, Law of Evidence §§ 91 and 771, 1 Texas Practice 132, 650. Furthermore, by terms of the statute character and general reputation are issues at the punishment hearing. Article 37.07, § 3(a).
With the suspended sentence law in effect, the Court held on application by an accused extended an invitation to the State to introduce evidence of his general reputation, Baker v. State, 87 Tex.Cr.R. 308, 221 S.W. 607, 609 (1920), since it thereby became an issue, Williamson v. State, 74 Tex.Cr.R. 289, 167 S.W. 360, 361 (1914). So it was soon fashionable for the prosecutor to comment on total failure of an accused to present reputation testimony and, as Scarborough v. State, supra, holds, to do so was not error. Still, as in the character witness situation, the authorities cited by the Court go through Taylor v. State, supra, back to Overby v. State, supra, in which particular prospective witnesses were identified, having been subpoenaed by the defendant, himself. In Overby v. State, supra, the Court stated: