Blount v. State

542 S.W.2d 164, 1976 Tex. Crim. App. LEXIS 1097

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 1976
• Docket: 51788
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at twenty-five years.

The sole ground of error challenges the sufficiency of the evidence to show that the rape was aggravated, V.T.C.A. Penal Code Sec. 21.03. Appellant makes no contention that the evidence would have been insufficient to support a conviction for rape, V.T.C.A. Penal Code Sec. 21.02, but contends only that there was no evidence that he “eompel[led] submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone,” V.T.C.A. Penal Code Sec. 21.-03(a)(2), as alleged in the indictment and as included in the trial court’s charge.¹

The record reflects that on the afternoon of November 13, 1974, two unarmed men, including appellant, forced their way into the house trailer of the prosecutrix, who was alone at the time.

The prosecutrix was a deaf-mute. With the aid of an interpreter skilled in sign language, she testified that the men dragged her along the floor through the bathroom and into the bedroom. She suffered a bruise on one arm as a result.

Appellant then undressed her while his partner held her down on a bed by her neck and shoulder with a pillow on her head. Both men engaged in sexual intercourse with her and then departed.

The only testimony of the prosecutrix as to her state of mind during these events was that she was “shocked” and “couldn’t think.”

The only evidence as to force or threats other than that recited is the following:

“Q. [by the prosecutor]: At the time while this was happening did one of them get a knife that belonged to your husband?

“A. [by the prosecutrix, with the aid of an interpreter]: She said yes.

“Q. Did he threaten you with it?

“A. No. She said no.

“Q. What did he do with it?

“A. The way I understand it the man said almost and she said no.

“Q. Did one of them tell you that if you told they would come back and kill you?

“A. Yes.”

Thus, the only threatened death was conditional and at some indefinite time in the future. This threat was insufficient to satisfy the requirement of the statute that the threat be imminent. As stated in the practice commentary to Sec. 21.03:

“Note that the threatened harm of Subsection (a)(1) [sic²] must be ‘imminent;’ hence a threat to harm someone at an indeterminate time in the future does not aggravate.”

See also Zamora v. State, Tex.Cr.App., 449 S.W.2d 43; Diggles v. State, 99 Tex.Cr.R. 288, 269 S.W. 88.

Hence, the conviction can stand only if there was sufficient proof of a threat of imminent infliction of serious bodily injury, which is defined in V.T.C.A. Penal Code Sec. 1.07(a)(34) as follows:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

A threat can be communicated by action or conduct as well as words. Most v. State, Tex.Cr.App., 386 S.W.2d 537; May v. State, 172 Tex.Cr.R. 490, 358 S.W.2d 379. In the instant case, however, there was no evidence of any threat by any means that rose to the level of the quoted statutory definition. No weapons were used; the prosecutrix was not mistreated to the extent that serious bodily injury might have resulted, and no verbal or written threats of such nature were communicated.

It is necessary, therefore, that the judgment be reversed. See Zamora v. State, supra; May v. State, supra; cf. Banks v. State, 530 S.W.2d 940; Twomey v. State, 520 S.W.2d 784; Lewis v. State, 503 S.W.2d 806; DeVonish v. State, 500 S.W.2d 800; Broadway v. State, 418 S.W.2d 679; Most v. State, supra.

We iterate that the evidence would have been sufficient to support a conviction for rape under Sec. 21.02, which apparently is what the dissent also finds. The dissent, however, does not contest our finding that what threats were made were not imminent threats of death or of serious bodily injury. The dissent filed makes no assertion not made by this majority nor does it find any fact proven that we have held not proven. It is a dissent without reason that would abolish the distinction between rape (Sec. 21.02) and aggravated rape (Sec. 21.03), and ignore the legislative mandate that two distinct offenses be defined in those provisions. The lesser included offense which this record shows appellant to have committed was not even submitted to the jury. Yet the dissent, on proof of guilt for simple rape, would hold appellant guilty of a different and more serious offense for which there was insufficient evidence.

The judgment is reversed and the cause remanded.

1 . We note that the charge also authorized the jury to find appellant guilty if it found that he had caused serious bodily injury to the prose-cutrix, see V.T.C.A. Penal Code Sec. 21.-03(a)(1). This aggravating factor was neither alleged in the indictment nor, as conceded by all, supported by a scintilla of evidence at trial. The inclusion of this portion of the charge was error. See Dowden v. State, 537 S.W.2d 5 (1976).

2 . The proper subsection is (a)(2).