Court of Appeals of Texas, Sixth District, Texarkana
Submitted: October 26, 2016
Appeal from the 276th District Court Marion County, Texas
Trial Court No. F14603
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice.
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. 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.
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.
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.
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.
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
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." 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.
testified that she left Phelps a few days later because she
was also scared of him.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.
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.
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
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.
hearing the evidence, the jury found Phelps guilty.
Phelps' Daughter Was Not An Accomplice
first point of error, Phelps argues that Ashley was an
accomplice as a matter of lawand 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.
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).
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.
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.
rule in Bolin was adopted in 1885 in the case of
Mercer v. State, where the court of
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
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 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),
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
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).
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). On the other hand, if the other person
unwillingly participates, the relationship between the
parties is one of perpetrator and victim. This distinction
is significant to the application of the accomplice-witness
rule in incest cases.
"[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
Sanders v. State, 102 S.W.2d 208 (Tex. Crim. App.
1937). Likewise, in Mercer, the Court of
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. ...