Witness Corroboration When Defending Sexual Assault Charges in Texas

Witnesses are very important in any criminal trial.  If what they have to say isn’t significant, they would not be called to the witness stand.  Their statements, sworn under oath, are either proof of an element in the prosecution’s case or a component of the defense’s challenge to it.

All witnesses give evidence at trial.  There are fact witnesses, called by the prosecution or the defense to give testimony about circumstances in the case.  This can include the accused giving trial testimony in defense of the charges.  There are also expert witnesses who may opine on things like forensic DNA evidence or fingerprints, as well as the defendant’s mental state at the time of the incident (e.g., psychologists, psychiatrists, and criminologists).

Admissibility of Witness Testimony

All this testimony must pass muster with the judge regarding its authenticity and admissibility.  For instance, hearsay from a fact witness is inadmissible upon objection.  Tex. R. Evid. 801.

Defense lawyers must be alert to any suggestion of hearsay, as well as other failures in testimony, as it is being offered by the prosecution into the record at trial.  If the statements offered by the state’s witness as evidence are deemed inadmissible by the judge, they cannot be considered by the jury. If inadmissible evidence is allowed by the trial judge, despite the defense’s objections, the defense will have grounds for a reversal of any guilty verdict on appeal.

Credibility of Witness Testimony

Even if the testimony is allowed into evidence, from the perspective of the defense, there are still things to consider.  In any criminal proceeding, the credibility of that testimony must be evaluated. As the Texas Court of Criminal Appeals explains, the jury has the job to “……to weigh the evidence, to judge the credibility of the witnesses, and to choose between conflicting theories of the case.” Merritt v. State, 368 S.W.3d 516, 527 (Tex. Crim. App. 2012).  The court (at trial or on appeal) is not to play “thirteenth juror” and second guess the jury’s decisions on the credibility of the witnesses.  Id.

Credibility is a big deal in any trial, civil or criminal.  Consider the recent media coverage of the Johnny Depp trial where Amber Heard’s testimony regarding Depp’s bad acts was not determined to be credible by the jury.  For more, read “Amber Heard’s ‘Credibility in Tatters’ After Losing Depp Trial—Legal Expert,” written by Giulia Carbonaro and published in Newsweek on June 2, 2022.

What is a credible witness?  It is anyone who testifies at trial who is perceived to be believable and trustworthy, whose testimony is more likely than not to be truthful.

Defense lawyers have several tools to challenge the credibility of witnesses offered by the state.  This includes introducing any prior criminal convictions; exposing past inconsistent statements; and revealing bias.

As the Texas Court of Criminal Appeals has explained, “Witnesses are not fungible, some are credible and some are not.”  Brooks v. State, 323 S.W.3d 893, 926 (Tex. Crim. App. 2010).

Corroboration of Witness Testimony

Which is why witness corroboration is compulsory in many criminal matters.  For more, read our earlier article, Witness Corroboration under the Texas Penal Code: Who Believes a Snitch?

For some witnesses, just taking the stand and swearing to testify truthfully will not be enough.  They are simply assumed not to be credible.  Legally, some types of witnesses must have their testimony confirmed in some way.  Jailhouse snitches, confidential police informants, and undercover police officers are three examples (as discussed in our earlier article).  For these witnesses, the Texas Legislature has passed specific statutes requiring corroboration of the testimony.

Witness Corroboration in Sexual Offense Cases

When an individual has been charged with a crime based upon a sexual offense, a precise Texas law applies regarding witness corroboration.  This statute mandates that an adult sex assault victim must tell someone about the rape within one (1) year of the date of the alleged rape other than the defendant. Otherwise, her statement alone is not sufficient under state law to be considered as credible evidence.

Texas Code of Criminal Procedure Art. 38.07

Specifically, with its latest amendment in 2011, Article 38.07 of the Texas Code of Criminal Procedure (“TCCP 38.07”), entitled “Testimony in Corroboration of Victim of Sexual Offense,” states:

(a)  A conviction under Chapter 21, Section 20A.02(a)(3), (4), (7), or (8), Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.

 (b) The requirement that the victim inform another person of an alleged offense does not apply if at the time of the alleged offense the victim was a person:

(1) 17 years of age or younger;

(2) 65 years of age or older; or

(3) 18 years of age or older who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care, or protection from harm. 

By definition, this statute applies specifically to offenses found within certain sections of the Texas Penal Code, including all of Chapter 21 of the Texas Penal Code (“TPC”), which deals with Sexual Offenses. The statute is thereafter limited to application for charges involving TPC §20A.02, the statute dealing with the “trafficking of persons,” and also applies to the laws regarding sexual assault (TPC §22.011) or aggravated sexual assault (TPC §22.021).

Exception to Witness Corroboration in Sexual Assault Cases

In sum, there is no need for witness corroboration in a sexual assault (rape) case charged under Texas law if the victim informed any person, other than the defendant, of the alleged offense within one (1) year after the date on which the offense is alleged to have occurred.  This statute provides an exception to the need for the prosecutor to prove up corroboration of a witness in these matters.

Of course, if the alleged rape victim did not tell anyone about the incident within a year’s time, then there must be independent corroboration of that witness testimony provided by the state pursuant to this statute.

The corroboration requirement does not apply if at the time of the alleged assault (1) the victim was very young (under 17 years of age); (2) a senior citizen (65 years of age or older); or (3) an incompetent adult (defined by law as someone 18 years of age or older with disease, defect, or injury that renders them “substantially unable” to meet their personal needs for food, shelter, medical care, or keeping safe from harm).

How does this work in criminal cases?  It can work to help the defense.  The Texas Court of Criminal Appeals has provided the following clarification in Martinez v. State, 178 S.W.3d 806, 812- 814 (Tex. Crim. App. 2005) (footnotes omitted) (citations omitted), quoting from the opinion:

1.  It is a “defendant-protecting” statute.

“Article 38.07 protects the accused by creating a statutory corroboration requirement. Its purpose is almost exactly opposite to that of Article 38.072: this is a defendant-protecting statute, rather than a child-victim-protecting statute. It limits the circumstances in which the State may obtain a conviction for sexual offenses based on the testimony of a competent adult to situations in which: (1) the victim made an outcry within one year of the criminal act; or (2) there is other evidence that corroborates the victim’s testimony.

2.  It is based upon longstanding case precedent.

“This statute may well be the vestigial tail of an outmoded era, but it had its genesis in early opinions from this Court. As long ago as 1896, this Court stated that, in rape cases,

All of the authorities teach that, where a case of this character rests solely upon the testimony of the prosecutrix, it is the duty of the jury to scrutinize and weigh her testimony very carefully; and in every case it is considered important as corroborative of her evidence that, soon after the alleged rape, she made complaint of the outrage.

“By 1936, this judicial and societal scepticism—perhaps based on the old adage that “Hell hath no fury like a woman scorned”—had evolved into a real “rule”:

a conviction for rape by force will not be sustained on the uncorroborated testimony of a woman who waits too long before announcing her decision that she has been raped, unless the delay is supported by … cogent reasons[.]

“This rule apparently evolved as a reflection of “judicial concern that the victim had actually consented and thus was in some sense an accomplice or akin to one.””

3.  Texas legislature intended to reduce impact of traditional corroboration requirement.

“In 1975, the Texas Legislature set out to abolish the judicially created corroboration requirement, but instead ended up enshrining it in Article 38.07. Nonetheless, the general legislative purpose, both in 1975 and in later amendments, was to make conviction in rape cases easier to obtain by reducing the impact of the traditional, judicially created corroboration requirement.

“Thus, Article 38.07 requires the State to offer some corroborative evidence, such as eyewitness testimony, a defendant’s admissions, medical testimony, or other circumstantial proof, if the competent adult complainant in a sexual assault prosecution has not informed any adult, other than the defendant, of the alleged offense within a year of its commission.  Of course, if the victim’s statements to that witness are otherwise admissible under the hearsay rule, then the witness may recount the victim’s outcry. But Article 38.07 is not itself an exception to the hearsay rule.

“In sum, Article 38.07 deals with the sufficiency of evidence required to sustain a conviction for sexual assault but does not act as a hearsay exception, while Article 38.072 deals with the admissibility of evidence that would otherwise be barred by the hearsay rule.”

Sexual Assault Cases and TCCP Art. 38.07

Key here, from a criminal defense standpoint, are the particular charges that the accused faces in the criminal proceeding.  Sexual assault (rape) cases will be treated differently depending upon the age of the alleged victim at the time of the incident.

Competent Adult Complainant

If there is a “competent adult complainant in a sexual assault prosecution,” then the defense has the ability to challenge that testimony.

There is a statutory challenge to the testimony if the prosecutor fails to (1)  “…offer some corroborative evidence, such as eyewitness testimony, a defendant’s admissions, medical testimony, or other circumstantial proof” after (2) confirmation that the complainant did not tell any adult other than the defendant of the alleged assault within one year of its occurrence.  Martinez, 178 S.W.3d at 814.  The longstanding assumption that waiting a year before saying anything about a sexual assault weakens the credibility of the complainant-witness can be brought forth by the defense.

Child Complainant

However, if the victim is a child, then the matter will be considered as a child sexual abuse case.  That child’s uncorroborated testimony will be enough for the prosecution to prove its case of indecency with a child, as long as each element of the offense is established in testimony.  TCCP Art. 38.07;  Martinez, 178 S.W.3d at 814.

The child’s testimony will be deemed credible without corroboration no matter when the outcry took place. This is because the minor is within the stated statutory exception which removes the requirement that someone be told within the one-year time frame applying to competent adults.

TCCP Art. 38.07 is less “defendant-protecting” here, because the prosecutor in these cases will not have to introduce corroborating evidence.  The child’s outcry alone will support a sexual abuse conviction. See, Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref’d).

For more on child sexual assault allegations, read our earlier discussions in:

• Aggravated Sexual Assault of a Child:  Texas Penal Code §22.021
• Indecency with a Child Arrest in Texas 
• Sexual Performance of a Child: Criminal Charges under Texas Penal Code § 43.25
• The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c): Part One of Two
• The Crime of Continuous Sexual Abuse of a Child, Texas Penal Code 21.02(c) Part Two of Two: Is Texas’ Version of Jessica’s Law Unconstitutional?

Sexual Assault Defense in Texas

Anyone who may be investigated, arrested, or charged with sexual assault (rape) or aggravated sexual assault in Texas is wise to have experienced and zealous sex crimes defense representation as soon as possible.  These matters are always serious.

First of all, even the suggestion that someone is being targeted by law enforcement for a sex crime can cause tremendous, permanent harm to their personal lives and professional reputations.  Even the suggestion that someone is a rapist in school or office gossip or social media chatter is devastating.  The whispers or smears are very, very hard to counter or refute.

False rape or assault claims are known to happen.  It is a felony in Texas to make a false sexual assault charge.  Still, they do occur for various reasons.  For more, read False Rape or Sexual Assault Claims: False Allegation is a Felony Charge.

Secondly, no one should delay in defending against these accusations even if they are merely innuendos at the time.  Rape or sexual assault crimes are serious felonies that are usually diligently pursued by both police and prosecutors where years of imprisonment as well as registration as a sex offender may be involved.

Consider the fact that in Texas, a conviction for aggravated sexual assault results in punishment as a first-degree felony with sentencing between 5 – 99 years behind bars and a maximum fine of $10,000.  If it is shown that the victim was a child under the age of 6, the minimum prison term is 25 years. TPC §22.021(f)(2).

An experienced criminal defense attorney will understand the complexities of admissibility of witness testimony as well as countering the credibility of witnesses taking the stand to offer evidence in a sexual assault case.  Making sure that witness corroboration is provided as required by TCCP Art. 38.07 is vital in these matters.

For more, read:

• Sex Crimes in Texas: Criminal Defense Overview
• Defending Sexual Assault Charges and the Bill Cosby Trial
• Rape or Sexual Assault: Accusations or Gossip vs. Innocence and Texas Criminal Defense These Days
• Sex Crimes in Texas: How Soon Do You Need to Call a Criminal Defense Lawyer?

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Top 10 List of Mistakes Made in Sexual Assault and Indecency with a Child Cases.”