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Phelps v. State

Court of Appeals of Texas, Sixth District, Texarkana

April 10, 2017

JOHN ROBERT PHELPS, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: October 26, 2016

         On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14603

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Ralph K. Burgess Justice.

         After a jury heard evidence that John Robert Phelps engaged in sexual intercourse with his nineteen-year-old biological daughter, they convicted him of prohibited sexual conduct.[1] In accordance with the jury's verdict, the trial court sentenced Phelps to twenty years' imprisonment, ordered him to pay a $10, 000.00 fine, and also ordered him to pay $400.00 for his court-appointed counsel.

         On appeal, Phelps argues that the evidence is legally insufficient to support the jury's verdict of guilt because his daughter's testimony was not sufficiently corroborated. He also argues that the trial court erred in failing to charge the jury that his daughter was an accomplice to the offense as a matter of law.

         Because we conclude under the facts of this case and the applicable law that Phelps' daughter was a victim, rather than a willing participant in the incestuous relationship, we conclude that she was not an accomplice to the offense. Accordingly, we overrule both of Phelps' points of error. However, we modify the trial court's judgment to delete the imposition of attorney's fees for court-appointed counsel because the record demonstrates that Phelps was indigent and that the trial court made no determination that he was able to pay those fees. As modified, we affirm the trial court's judgment.

         I. Factual Background

         Phelps' daughter, Ashley, testified that when she was six years old, Phelps made her sit on his lap while he showed her photographs of children performing sexual acts for their parents. From that point, Ashley's childhood was overshadowed by mental, physical, and sexual abuse, which she believed was normal because she "never knew any different [sic]." Ashley testified that Phelps began penetrating her sexual organ at a young age. When she started her menstrual cycle at the age of nine, Phelps would test her urine to ensure that she was not pregnant. Phelps continuously warned her that "it would be bad" if she spoke to anyone about the sexual abuse and that her mother and others would "judge [her] and be mad at [her]." Ashley testified that she kept her silence because she was afraid of the consequences.

         Ashley further testified that she could not count how many times she had been sexually abused by her father. She informed the jury that she was unable to physically defend herself against Phelps who was six feet four inches tall and weighed over 200 pounds. Ashley said, "I would try and push him away, but most of the time it didn't work, and I just got to where I gave up trying to put up a fight because it wouldn't have helped."

         Ashley then described the 2012 occurrence that gave rise to the State's indictment. She testified that during an argument with Phelps, she "said something . . . smart alec, and he hit me open-handedly across the face."[2] After the incident, Ashley felt "upset and just aggravated, and [she] just wanted to go to sleep to be done with the day." She changed into her pajamas and went to sleep in her room, but was awakened by Phelps, who "began to touch [her] private area, and . . . began penetrating [her]." In her written statement to police, she added that she "tried pushing him away, but he continued." According to Ashley, Phelps stopped the sexual assault and quickly threw a blanket over her after her mother walked past the door to her bedroom. When Ashley's mother, Tammy Phelps, asked Phelps what he was doing, he responded that he was in Ashley's room because he felt bad for hitting her.

         Tammy testified that she left Phelps a few days later because she was also scared of him.[3]In 2014, Ashley also moved out of the home. Caren Crumbie testified that she invited Ashley to live with her after discovering that she was homeless. They became friends, and Ashley told Crumbie about the abuse. Crumbie described Ashley's account as "heart-breaking." Ashley told Crumbie that she was concerned about her sister, who was ten years younger than Ashley and was still living with Phelps. Crumbie testified that the two discussed reporting Phelps' sexual abuse to the police in the hope of preventing possible abuse of Ashley's sister.

         After the discussion, Ashley contacted Alisha Riehl, a corporal with the Marion County Sheriff's Office, about "[t]he physical and sexual abuse and the mental abuse that [she] endured." Riehl testified that Ashley revealed instances of "sexual abuse as a child" during her interview.

         Phelps did not assert that Ashley was a willing participant, but instead denied that the events alleged by Ashley occurred. By the time of trial, Tammy had reconciled with Phelps. She testified that she never saw any inappropriate sexual activity between Ashley and Phelps. According to Tammy, Ashley said that nothing ever happened between her and Phelps.

         Rebecca Konrad, who lived with Phelps and Ashley from July 2012 until the end of 2013, also testified that she never witnessed any sexual abuse between them. However, Konrad witnessed verbal, mental, and physical abuse. She testified that Phelps "shoved [Ashley] into a wall and spit in her face and slapped her as well." According to Konrad, the instances of physical abuse were "too many to count." When Konrad was seventeen, she became engaged to Phelps after Tammy left him, but called off the relationship after Phelps began physically abusing her.

         After hearing the evidence, the jury found Phelps guilty.

         II. Phelps' Daughter Was Not An Accomplice

         In his first point of error, Phelps argues that Ashley was an accomplice as a matter of law[4]and that the evidence is legally insufficient to support the jury's finding of guilt because her testimony was not sufficiently corroborated. "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). An accomplice is one who was or could have been charged with the same or a lesser-included offense. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013).

Phelps cites to Bolin v. State, in which the Texas Court of Criminal Appeals wrote:
It is the established rule that a female who consents to or voluntarily enters into an incestuous intercourse is an accomplice witness. Conversely, if the act is the result of force, threats, fraud, or undue influence, she is not an accomplice witness. If such female is found to be an accomplice witness, then there must be other evidence tending to connect the accused with the offense. If such corroboration is lacking, the evidence will be held insufficient to support the conviction.

Bolin v. State, 505 S.W.2d 912, 913 (Tex. Crim. App. 1974) (citations omitted).

         In Bolin, the defendant's thirteen year-old daughter asked her father if he would purchase hamburgers for her and her siblings. Id. at 912-13. The defendant answered, "Yeah, but you know what you have to do to get 'em." Id. at 913. After the children ate the hamburgers that the defendant purchased, the defendant called his child daughter into his bedroom. Id. He asked his daughter to remove her clothes, and she complied. Id. He then engaged in incestuous sexual intercourse with his daughter. Id. At trial, the child testified that her father had been sexually abusing her since she was ten years old and that she had told him "on more than one occasion that sex hurt her and she did not want to do it." Id. After citing the rule mentioned above, the Court of Criminal Appeals concluded that the child was not the victim of force, threats, or fraud because "the evidence showing that she made neither outcry nor resistance, although others were nearby" established that she was an accomplice. Id. The court also concluded that the child was not the victim of undue influence because "[a] woman whose consent to an act of intercourse is obtained by the payment or promise of money would ordinarily be held an accomplice." Id. Accordingly, the Texas Court of Criminal Appeals held that the child was an accomplice as a matter of law. Id. at 914.

         In declining to apply Bolin in the past, we have previously noted that a person under the age of seventeen is legally incapable of giving consent to intercourse. Duby v. State, 735 S.W.2d 555, 557 (Tex. App.-Texarkana 1987, pet. ref'd). However, Duby involved a complaining witness who was a minor, whereas, the complainant in the present case was nineteen years old at the time of the act resulting in the present prosecution. Moreover, the cases citing the rule followed in Bolin have held that evidence such as that presented in this record does not rise to the level of "outcry nor resistance" sufficient to allow conviction without corroboration of the complaining witnesses' testimony. Nevertheless, as is shown below, the rule in Bolin is no longer applicable because the incest statute in effect when the rule was adopted was amended in 1973, thereby superseding the Bolin case.

         The rule in Bolin was adopted in 1885 in the case of Mercer v. State, where the court of appeals[5] held,

It was entirely upon the testimony of the defendant's daughter, with whom the incestuous intercourse is alleged to have occurred, that this conviction was obtained. . . . If the witness, knowingly, voluntarily, and with the same intent which actuated the defendant, united with him in the commission of the crime charged against him, she was an accomplice, and her uncorroborated testimony cannot support the conviction. But if, in the commission of the incestuous act, she was the victim of force, threats, fraud or undue influence, so that she did not act voluntarily, and did not join in the commission of the act with the same intent which actuated the defendant, then she would not be an accomplice, and a conviction would stand even upon her uncorroborated testimony.

Mercer v. State, 17 Tex. Ct. App. 452, 465 (1885) (citation omitted). To understand the basis for this rule, and why the rule is no longer applicable to the current incest statute, we must compare the current and former Texas incest statutes.[6]

         The incest statute in effect when Mercer was decided was Article 329 (later renumbered as Article 495) of the Texas Penal Code of 1879. It said, "All persons who are forbidden to marry by the succeeding articles, who shall intermarry or carnally know each other, shall be punished by imprisonment in the penitentiary not less than two nor more than ten years." Act of Feb. 21, 1879, 16th Leg., R.S., SB 20 (1879 Penal Code not printed in General and Special Laws of Texas), https://www.sll.texas.gov/assets/pdf/historical-statutes/1879/1879-4-penal-code-of-the-state-of-texas.pdf. The statute remained virtually unchanged until 1973, when the current Penal Code was adopted, creating Section 25.02. Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 25.02, 1973 Tex. Gen. Laws 883, 921-22 (amended 1993, 2005, 2009) (current version at Tex. Penal Code § 25.02 (West 2011)). The 1973 version of the statute stated, "An individual commits an offense if he engages in sexual intercourse . . . with a person he knows to be, without regard to legitimacy[, related within the prohibited degree of kinship]." Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 25.02, 1973 Tex. Gen. Laws 883, 921-22 (amended 1993, 2005, 2009). The current version of Section 25.02 contains essentially the same language as the 1973 version.[7]

         "When the legislature amends a statute, we presume the legislature meant to change the law, and we give effect to the intended change." Brown v. State, 915 S.W.2d 533, 536 (Tex. App.-Dallas 1995), aff'd 943 S.W.2d 35 (Tex. Crim. App. 1997) (citing Cook v. State, 824 S.W.2d 634, 643 (Tex. App.-Dallas 1991, pet. ref'd)); see also Lafayette v. State, 835 S.W.2d 131, 134 (Tex. App.-Texarkana 1992, no pet.) ("In construing a statute, we must presume that all of the language employed by the Legislature has a meaning and purpose."). "We also presume the legislature was aware of all caselaw affecting or relating to the statute." Brown, 915 S.W.2d at 536 (citing Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex. Crim. App. 1992), superseded by statute on other grounds as recognized by Lopez v. State, 253 S.W.3d 680, 686 n.28 (Tex. Crim. App. 2008)). Moreover, "[w]e presume that the legislature used every word for a purpose and excluded every word excluded for a purpose." Id. (citing Cook, 824 S.W.2d at 643).

         Obviously, a defendant cannot commit the offense of incest without the participation of another person, but the other person's participation can be willing or unwilling. If the other person willingly participates in the act of sexual intercourse, the relationship between the parties is one of perpetrator and accomplice (or co-perpetrators).[8] On the other hand, if the other person unwillingly participates, the relationship between the parties is one of perpetrator and victim.[9] This distinction is significant to the application of the accomplice-witness rule in incest cases.

         Ordinarily, "[i]t is incumbent upon the accused to develop such facts as would show that the [accomplice witness] rule applies." Lundy v. State, 296 S.W.2d 775, 776 (Tex. Crim. App. 1956). Yet, the rule announced in Mercer and restated in Bolin effectively reversed this burden in incest cases, requiring the State to corroborate the complainant's testimony unless it presented evidence establishing that the accomplice witness rule did not apply. Thus, in Sanders v. State, the Court of Criminal Appeals held,

It seems to be the well-settled rule in this state that ordinarily the prosecutrix in an incest case is an accomplice and that her testimony needs to be corroborated as to the main fact sought to be established, unless her testimony brings her within an exception to the general rule when such means as force, threats, etc., are used to overcome resistance.

Sanders v. State, 102 S.W.2d 208 (Tex. Crim. App. 1937). Likewise, in Mercer, the Court of

         Appeals defined the issue as follows:

By far, the most embarrassing question to us, which is presented in this case for our determination, is the sufficiency of the evidence to sustain the conviction. If the prosecuting witness was not an accomplice, then the evidence is unquestionably sufficient. If, on the other hand, she was an accomplice, her testimony, if not corroborated to the extent required by law, is insufficient. The first inquiry, therefore, is, does the evidence warrant the conclusion that she was not an accomplice?

Mercer, 17 Tex. Ct. App. at 465. In Alexander v. State, the Court of Criminal Appeals held that "[i]ncest is an offense against society in which both parties ordinarily engage with the same intent and purpose; hence both parties to the offense are principals and equally guilty." Alexander v. ...


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