Jerry Don Martin v. The State of Texas--Appeal from 220th District Court of Hamilton County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-92-00017-CR

Case Date: 10/07/1992

Plaintiff: Jerry Don Martin

Defendant: The State of Texas--Appeal from 220th District Court of Hamilton County

Preview:Jerry Don Martin v. The State of Texas--Appeal from 220th District Court of Hamilton County
IN THE TENTH COURT OF APPEALS

No. 10-92-017-CR

JERRY DON MARTIN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Hamilton County, Texas Trial Court # 6498

OPINION

Jerry Martin appeals his conviction for aggravated sexual assault. He was charged by indictment with "intentionally and knowingly caus[ing] the sexual organ of [L.M.], a child who was then and there younger than fourteen (14) years of age and not the spouse of Defendant, to contact the sexual organ of Defendant." Martin was found guilty by a jury, and the jury assessed punishment at fifty years in prison. In point one, Martin contends that the evidence was legally insufficient to prove beyond a reasonable doubt that he was the perpetrator of the offense alleged. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // After using the word "bobo" to describe the male and female genitalia on anatomically correct dolls, the victim testified that Martin put his "bobo" next to hers. She then identified Martin as the "Jerry" to whom she referred.

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Although on cross-examination the victim testified that Jerry Henderson was the perpetrator of the offense, on redirect examination the victim lead the prosecuting attorney directly to Martin and again identified him as the "Jerry" who touched her "bobo" with his "bobo." At the time of this in-court identification, Jerry Henderson was seated at the State's counsel table. The essence of Martin's argument is that, because the victim's testimony was "noticeably more compelling" after an overnight recess, her testimony was suspect. The jury, however, is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. // Because the victim's testimony is legally sufficient evidence to prove that Martin was the perpetrator of the offense, we overrule point of error one. In point two, Martin contends that the court abused its discretion in allowing the testimony of the child victim because she was incompetent to testify under Rule 601 of the Texas Rules of Criminal Evidence. According to Rule 601(a)(2), "Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated," shall be incompetent to testify. // The victim was four years old at the time of trial. The trial court examined her pursuant to Rule 601 to determine if she was a competent witness. She told the court her name and indicated her age. She also named her parents, but was unable to identify the lady who brought her to the courtroom. Finally, the child identified the room where she was testifying as a courtroom, acknowledged that she knew the difference between the truth and a lie, and agreed that it is not good to tell a lie. Outside the presence of the jury, the prosecutor conducted the following examination of the child: QIf I said that this paper is black, would that be the truth or would that be a lie? ALie. QWhat is it? What color is it? AWhite. QIt's white, isn't it? A(Nodding head affirmatively). QAnd if I said that you had a black dress on, would that be the truth or would that be a lie? ALie. QBecause what color what are those colors in your dress? ABlue, purple, white, and pink. QAnd pink. That's right.

The child again acknowledged that she understood the difference between the truth and a lie and said, "The lie is not truth." The court denied Martin's motion to disqualify the witness as incompetent to testify. The court's decision will not be disturbed on appeal in the absence of an abuse of discretion. // In determining whether there was an abuse of discretion, a review of all the child's testimony, rather than just the preliminary qualification, should be made. // Although some of the child's answers were at times conflicting and occasionally showed confusion, inconsistencies alone would not render her an incompetent witness. // We find no abuse of discretion and overrule point of error two. In point three, Martin contends that the court erred in allowing the victim's mother to testify concerning an outcry statement made by the victim because the requirements of article 38.072 of the Texas Code of Criminal Procedure were not satisfied. // Specifically, Martin argues that the mother's testimony was not reliable because she did not tell
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anyone about the victim's outcry statement for an entire month. Article 38.072 does not, however, require the court to find that the mother's testimony is reliable. Instead, it requires the trial court to find "that the statement [of the child] is reliable based on the time, content, and circumstances of the statement." // Martin's concern with the mother's testimony has nothing to do with article 38.072; rather, he complains that she is not a credible witness because she did not report the outcry statement of her daughter for an entire month. // The trier of fact had sufficient evidence to conclude that the victim's outcry statement was not fabricated by the mother. // Because the time, content, and circumstances of the victim's statement were sufficient for the court to find that the outcry statement was reliable, we overrule point of error three. In point four, Martin contends that the court erred in allowing testimony that the victim identified Martin from a photographic array because the line-up was impermissibly suggestive. Specifically, he argues that he was substantially older than the other individuals depicted. Jim Buster, an investigator for the Hamilton County Sheriff's Department, testified, without objection, that on February 22, 1991, the victim identified Martin from a photographic line-up as the man who touched her "beebo." Although Martin objected to the admission of the photographic line-up, he failed to object to Buster's testimony. Because Martin's complaints on appeal do not comport with the objection made at trial, nothing is preserved for review. // Furthermore, any unassigned error in the admission of the photographic line-up was cured when the same evidence came in by Buster's testimony. // We overrule point of error four. In point five, Martin contends that the trial court erred in submitting jury instructions on the law of parole pursuant to article 37.07, section 4, of the Texas Code of Criminal Procedure. // On the same day Martin's attorney signed his brief, the Court of Criminal Appeals held that the 1989 amendment to article IV, section 11(a), of the Texas Constitution removed the due course of law, as well as the separation of powers, constraints that formerly plagued parole-law instructions. // Because the court's charge conformed to the parole law-instruction set out in article 37.07, we overrule point of error five. We affirm the judgment. BOBBY L. CUMMINGS Justice

Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed October 7, 1992 Do not publish

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