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Tutt v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 21, 2017
No. 06-16-00212-CR (Tex. App. Jun. 21, 2017)

Opinion

No. 06-16-00212-CR

06-21-2017

OBIE EARL TUTT, II, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 115th District Court Upshur County, Texas
Trial Court No. 17368 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

Obie Earl Tutt, II, pled guilty to Count I of the State's indictment, which alleged that Tutt committed indecency with Janie Doe, a child, by touching her genitals. Yet, Tutt pled not guilty to Count II of the State's indictment, which alleged that he committed indecency with Doe by touching her breasts. A jury found Tutt guilty of Count II, indecency with a child, and assessed punishment on both counts alleged in the State's indictment. In accordance with the jury's assessment, the trial court, on Count I, sentenced Tutt to twenty years' imprisonment and ordered him to pay a $5,000.00 fine and, on Count II, sentenced Tutt to fifteen years' imprisonment and ordered him to pay a $5,000.00 fine. The trial court ordered Tutt's sentences to run consecutively.

On appeal, Tutt argues that the evidence, Doe's uncorroborated testimony, is insufficient to sustain the jury's finding of guilt on Count II because Doe was an accomplice and that the trial court erred in failing to submit an accomplice witness instruction. Because Doe was not an accomplice, however, her testimony was not required to be corroborated, and the trial court was not required to give the jury an accomplice-witness instruction. We, therefore, affirm the trial court's judgment.

In companion cause number 06-16-00213-CR, Tutt also appeals his convictions for two counts of aggravated sexual assault of a child and two counts of indecency with a child. That case is the subject of a separate opinion.

Tutt also argues that, in the event we sustain this point of error, the order to cumulate the sentences must be set aside.

Doe was fifteen years old at the time of trial. She testified that Tutt had placed his hand on her body "where it shouldn't have gone" on "a lot" of occasions. With respect to Count II of the State's indictment, Doe specifically testified that Tutt had touched her breasts. Tutt's two issues on appeal are based on his conclusion that Doe was an accomplice. We disagree.

"A conviction cannot be had on 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).

Tutt has not demonstrated how Doe could have been charged with indecency with a child or any lesser included offense for the acts alleged in the State's indictment. Instead, Tutt's theory that Doe was an accomplice rests on 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 does not apply to cases like this one in which one party is under the age of seventeen and, therefore, is legally incapable of giving consent. Duby v. State, 735 S.W.2d 555, 557 (Tex. App.—Texarkana 1987, pet. ref'd).

Bolin was decided under an earlier version of the prohibited-sexual-conduct statute. See TEX. PENAL CODE ANN. § 25.02(a) (West 2011) (current version). The offense of prohibited sexual conduct is currently set forth as follows:

(a) A person commits an offense if the person engages in sexual intercourse or deviate sexual intercourse with another person the actor knows to be, without regard to legitimacy:

(1) the actor's ancestor or descendant by blood or adoption;
(2) the actor's current or former stepchild or stepparent;
(3) the actor's parent's brother or sister of the whole or half blood;
(4) the actor's brother or sister of the whole or half blood or by adoption;
(5) the children of the actor's brother or sister of the whole or half blood or by adoption; or
(6) the son or daughter of the actor's aunt or uncle of the whole or half blood or by adoption.
Id. The statute describes incest, in which certain relatives engage in consensual, sexual relations.

Finally, it is well settled that "[t]he testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child." Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd); see TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Halbrook v. State, 322 S.W.3d 716, 720 (Tex. App.—Texarkana 2010, no pet.). Since Doe was not an accomplice, Doe's testimony required no corroboration, and Tutt was not entitled to have the jury instructed regarding an accomplice witness. Tutt's points of error are overruled.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice Date Submitted: June 20, 2017
Date Decided: June 21, 2017 Do Not Publish


Summaries of

Tutt v. State

Court of Appeals Sixth Appellate District of Texas at Texarkana
Jun 21, 2017
No. 06-16-00212-CR (Tex. App. Jun. 21, 2017)
Case details for

Tutt v. State

Case Details

Full title:OBIE EARL TUTT, II, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Jun 21, 2017

Citations

No. 06-16-00212-CR (Tex. App. Jun. 21, 2017)