Opinion
No. 42542.
January 28, 1970.
Appeal from the 175th Judicial District Court, Bexar County, Anees A. Semaan, J.
Adolph F. Spitta, San Antonio, for appellant.
James E. Barlow, Dist. Atty., and Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The offense is statutory rape; the punishment, seven years.
The state waived the death panalty and the trial was before the court on a plea of guilty.
The record reflects a careful and thorough compliance with the requirements of Articles 1.13, 1.14, 1.15 and 26.13 Vernon's Ann.C.C.P. in regard to waiver of a jury trial and plea of guilty.
The evidence stipulated and appellant's judicial confession support the judgment of the court.
The prosecutrix is the daughter of appellant.
The sole ground upon which appellant seeks reversal is raised in a motion for new trial which was not timely filed and was overruled by operation of law. We observe, however, that the 14 year old sister of the prosecuting witness whose affidavit that appellant had fondled her sexual parts was introduced under stipulation had, prior to trial, retracted and made affidavit that such prior affidavit was false.
The sister's retraction of such affidavit is not ground for setting aside the conviction for rape of another daughter upon a plea of guilty supported by affidavit of the prosecutrix offered under written stipulation and appellant's judicial confession.
The judgment is affirmed.