Hernandez v. State

¶1OPINION CONCURRING IN THE JUDGMENT OF THE COURT

¶2The petition for discretionary review received from our State Prosecuting Attorney presented three grounds for review; though it was granted without restriction, the opinion of the Court fails to address a threshold issue raised in the court of appeals by the State and now reiterated as its first ground for review, viz:

“(1) The Court of Appeals erred in holding that a minor victim, who, as a matter of law, can neither be prosecuted for nor consent to the sexual offense charged, must be corroborated under Art. 38.07, Vernon’s Ann.C.C.P., if the victim did not report the crime to some person, other than the defendant, within six months of the offense.”1

¶3Convinced that resolution of that issue will clarify the application of Article 38.07, supra, and then dispose of all other questions in this cause, I propose to draw extensively from the petition to demonstrate that the addition of Article 38.07 to the Code of Criminal Procedure by Acts 1973, 64th Leg., p. 476, ch. 203, § 6, effective September 1, 1975, was meant to deal only with testimony of a victim of a sexual offense who, for one reason or another, was held to be an “accomplice witness” and, perforce, whose testimony must be corroborated.

¶4Prior to January 1, 1974, Article 38.07, V.A.C.C.P., provided:

“In all 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.”

¶5In its opinion reversing the present conviction, a majority of the court of appeals (hereafter “the majority”) states: “Prior to *752its amendment by the Legislature in 1975, Article 38.07, supra, addressed only the offense of seduction.” The majority then says: “In 1975, the 64th Legislature extended [Article 38.07’s] requirement for corroboration to include a necessity for corroborating the testimony of [all] victims of all sexual offenses under Chapter 21, Penal Code, [footnote omitted] without regard to the victim’s age, except in those cases where an outcry is made within six months after the date on which the offense is alleged to have occurred.” Hernandez v. State, 636 S.W.2d 617, at 619 (Tex.App.1982—San Antonio). The rest of the majority’s opinion hinges upon the proposition that the Legislature “amended” Article 38.07, supra, in 1975.2 With that premise, the majority is totally mistaken.

¶6On January 1, 1974, the 1925 Penal Code was repealed and the 1973 Penal Code became effective. In repealing the 1925 Penal Code, former Articles 505-509, which dealt with the offense of “seduction,” were specifically expunged from the statute books of this State. See 4 V.T.C.A. Penal Code, pp. 392-393. The 1973 Penal Code contained no law prohibiting the former offense of seduction. Therefore, on and after January 1, 1974, there was no offense of “seduction” prohibited by Texas law.

¶7Moreover, at the time the Legislature repealed the 1925 Penal Code, it also specifically repealed Article 38.07, supra, which required that the testimony of the victim in a “seduction” case be corroborated. See 4 Y.T.C.A. Penal Code, p. 396. Consequently, on and after January 1, 1974, and for a period of 20 months, up until September 1, 1975, when an entirely new Article 38.07 was enacted by Acts 1975, 64th Leg., p. 479, ch. 203, § 6, there was no Article 38.07 at all, much less one that could be amended.

¶8However, based on the mistaken premise that the Legislature had merely “amended” the seduction-corroboration requirement of former Article 38.07, the majority came to the effective conclusion that the Legislature had made it more difficult to obtain convictions in sexual offense cases. That conclusion misapprehends the very purpose and effect of the Act.

¶9Present Article 38.07 was a part of H.B. No. 284 of the Regular Session of the 64th Legislature.3 The whole purpose of H.B. No. 284 was to make it less difficult to obtain convictions in sexual offense cases. The “Bill Analysis” prepared for the House Committee on Criminal Jurisprudence states, under the heading “Background Information,” as follows:

“It is felt that much of the problem associated with the reporting and prosecution of rape is that the present statutes discourage reporting and prosecution because of embarrassment to the victim and the difficulty in obtaining a conviction.”

¶10Prior to the enactment of present Article 38.07, this Court had held that the victim in a case where a nonconsent rape was alleged, who was over the age of consent, could, in effect, be an “accomplice witness” whose testimony was required to be corroborated. Thus, a woman over the age of consent, who claimed that she was raped, was required to be corroborated if consent were an issue and the woman failed to make an outcry or promptly report the outrage, unless there was a reasonable explanation for such failure. However, the corroboration rule did not apply if: (1) consent was not in issue or the victim was legally incapable of consenting; (2) the victim made an outcry or a prompt report of the outrage; or (3) there was a reasonable ex*753planation for the failure to make an outcry or a prompt report of the outrage.

¶11In those cases in which the victim was considered to be an “accomplice” witness, the victim was apparently considered to be an “accomplice” witness in the sense that that term is used in Article 38.14, V.A.C. C.P., and its predecessors. But when it came to the socalled “statutory” rape cases, the court could not find sufficient justification for any “legal” conclusion that the victim was an “accomplice” witness. Therefore, the Court held that such victims were not “accomplice” witnesses; and convictions could be had on their uncorroborated testimony whether outcry or prompt report were made or not. See, e.g., Soliz v. State, 163 Tex.Cr.R. 508, 293 S.W.2d 662 (1956); Johnson v. State, 449 S.W.2d 65 (Tex.Cr.App.1969).

¶12Consequently, as applied to “statutory” rape cases, there was nothing for H.B. No. 284 to remedy, so far as any corroboration requirement was concerned. Prior law imposed no requirement of corroboration in such cases; convictions were easy enough to obtain; and, therefore, there was nothing to make “less difficult.”

¶13The majority of the court of appeals, however, has attributed an intention to the Legislature which would make convictions in “statutory” rape cases more difficult. Although no such requirement existed before, the majority says that the Legislature has now required corroboration in “statutory” rape or rape of a child cases where the victim does not inform some person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. In so doing, the majority has not only frustrated the intention of the Legislature to make convictions in sexual offenses less difficult to obtain; but it has also turned the statute on its head.

¶14There is quite a difference between requiring that a witness be corroborated and eliminating a former requirement of corroboration. In 1975 the Legislature sought to eliminate a former corroboration requirement brought about by decisions of this Court in some of the sexual offense cases, of which nonconsensual rape is but an example, where there was no outcry or prompt report but where the victim reported the offense to some person, other than the defendant, within six months of the offense. To say the contrary, as did the court of appeals’ majority, is to turn a positively worded statute upside down and thwart the intent of the Legislature.

¶15The Court has previously held that an alleged rape victim above the age of consent could be an “accomplice” witness, but it has not held, at least in recent times, that an alleged victim under the age of legal consent could be an “accomplice,” either as a matter of law or fact. Therefore, since the latter victims are not “accomplices,” they need not be corroborated under Article 38.14. We are entitled to attribute to the Legislature knowledge of such holdings in determining legislative intent to override them.

¶16In the present case, the prosecutrix was eleven years old at the time of the offense and twelve years old at the time of trial. She could not be prosecuted for rape as an adult nor could she be certified by the juvenile court for prosecution. V.T.C.A.Penal Code, § 8.07. Moreover, the prosecutrix in this case was among those class of victims that some statutes, like those denouncing rape of child, are designed to protect. V.T.C.A.Penal Code, § 21.09, makes victims under 17 who have not previously engaged in promiscuous sexual or deviate sexual intercourse and those victims under 14, regardless of prior promiscuous sexual conduct, legally incapable of giving consent to sexual intercourse. Thus, they are not legally responsible for their own undoing and cannot be accomplice witnesses as a matter of law or fact. Surely, we cannot attribute to the Legislature an intention to protect a certain class of victims, such as children, on the one hand, and also attribute to that body an intention to make those same victims as criminally culpable as those persons against whom that protection is designed to shield.

¶17Before the 1975 addition of Article 38.07 the Court held that the legislative distinc*754tion between children and older persons was a rational one. Hohn v. State, 538 S.W.2d 619, 622 (Tex.Cr.App.1976). Without compelling indicia that the Legislature intended to obliterate such a distinction founded in reason, I would hold that Article 38.07 embraces just those instances in which the victim has been considered an “accomplice witness” in the sexual offense, and no more.4

¶18Since I reach the same result as the Court, I join its judgment.