Buckley v. State

630 S.W.2d 740, 1982 Tex. App. LEXIS 3797
CourtCourt of Appeals of Texas
DecidedJanuary 28, 1982
DocketNo. 01-81-0014-CR
StatusPublished
Cited by4 cases

This text of 630 S.W.2d 740 (Buckley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckley v. State, 630 S.W.2d 740, 1982 Tex. App. LEXIS 3797 (Tex. Ct. App. 1982).

Opinion

DOYLE, Justice.

This is an appeal from a conviction for aggravated rape. The jury assessed appellant’s punishment at sixty years confinement in the Texas Department of Corrections.

The evidence adduced at the trial showed that in the early morning hours of January 12, 1979, a fight erupted between the complainant’s male friend and one John O’Daniel at the Steamboat Springs, a night club. During the fight the complainant lost her car keys. Appellant offered to drive her and her boyfriend home. After both had gotten into appellant’s car, the boyfriend got out of the car, deciding to take one more look for the lost keys. Appellant then sped off with only the complainant as his passenger. The complainant testified that when she demanded to be let out and attempted to escape, she was beaten, threatened and choked, and forced to commit oral sodomy and sexual intercourse with appellant before finally being released at the apartment of a friend at 5:57 a. m. Appellant denied that he made sexual advances toward the complainant and specifically denied that he raped her.

Appellant’s contentions on appeal are presented in fourteen grounds of error.

The relevant facts will be stated as each ground of error is discussed.

Appellant’s ninth ground of error challenges the sufficiency of the evidence to sustain the conviction for aggravated rape under § 21.03(a)(2), Texas Penal Code. We will discuss this ground first. In pertinent part this section provides:

“(a) A person commits an offense if he commits rape as defined in Section 21.01 of this code or rape of a child as defined in Section 21.09 of this code and he:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.

A summary of the testimony of the complainant as to her treatment at the hands of the appellant, was that she had been struck on her head and face by the appellant after she had demanded to be released from his car prior to the raping incident. He told her “I’m going to get what I want.” When appellant stopped at a convenience store, appellant told her he would kill her if she tried to escape from the car. Nevertheless, she attempted to get out, but was grabbed by the throat and choked by the appellant. Throughout the period that the appellant and the complainant were riding around, the threats to kill and the beatings continued. She testified, “Sir, he was slapping me, pulling my hair out, yanking me back and forth around the car, hitting me in the face.” “Whatever he hit me with it was hard enough to knock my teeth out.” Further, testimony showed that one of the complainant’s teeth was knocked out and had to be replaced. Also during the events leading up to the rape, the complainant was forced to commit an act of sodomy with the appellant. The complainant stated that although the appellant at no time during the episode exhibited a gun, knife or other weapon, she feared that he would kill her with his bare hands. Just prior to going to the body shop where the rape occurred, the complainant [742]*742testified: “We drove some more and drove and he kept hitting me and threatening to kill me and telling ... well, at any rate, we went to a body shop. He’s been hitting me already for hours.”

Appellant contends that absent the use of any deadly weapons, the verbal threats and relatively minor injuries are insufficient to sustain a conviction of “compelling submission to rape by threatening imminent infliction of serious bodily injury and death.” Appellant relies principally on Rucker v. State, 599 S.W.2d 581 (Tex.Cr.App.1980) and Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979). In Rogers the court held that unless there was an expressed verbal threat, only in instances where a gun, knife or other deadly weapon was used, would there be sufficient proof to sustain aggravated rape. Rucker, citing and following Rogers, held that the evidence adduced was insufficient to show aggravated rape since there was no weapon, and no expressed verbal threat made to compel submission. The court further stated in Rucker that the injuries suffered by the complainant when struck by the appellant did not inflict serious bodily injuries as defined by the statute. V.T.C.A., Penal Code, Sec. 1.07(a)(7) and (34).

The facts before us are distinguishable. The testimony in our case shows both the requisite expressed verbal threat of death or serious bodily injury, coercing submission, and the actual infliction of serious bodily injury when the complainant sought to resist or flee. Appellant’s ninth ground of error is overruled.

Grounds of error 1 through 3 complain that the trial court erred in allowing defense witnesses to be asked “have you heard” questions. We overrule these grounds. Appellant contends that these witnesses were character witnesses, not reputation witnesses, and that, as such, should not have been allowed to give answers relative to the appellant’s reputation. These questions arose at the punishment hearing of the trial.

Without detailing the testimony, the witnesses Tummy Young, Charles E. O’Connor and Delilah Hughes, when called as character witnesses by the appellant, each testified that they knew the appellant “to be a peaceful law abiding citizen” and that he had not violated the laws of this state or any other state. Defense witness Hughes additionally testified when asked if she knew appellant’s reputation as a law-abiding citizen: “As far as I know he’s a very law-abiding citizen.”

As a general rule, the State may ask a character witness on cross-examination if he has heard of a specific act of misconduct and if that act is inconsistent with or contrary to the character traits testified to by the witness. Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972). On the other hand, as pointed out in Ward v. State, 591 S.W.2d 810 (Tex.Cr.App.1978), “..., there is no reasonable basis for asking have you heard questions of a witness who testifies to his personal opinion of someone’s character, as opposed to the reputation of that person’s character.” Applying the rationale of Brown and Ward, we first examine the testimony of Delilah Hughes, who stated, without objection, when questioned by the defense:

Q. Is he a law-abiding person?
A. Yes, sir, he certainly is.
Q. Do you know Mr. Buckley’s reputation as a law-abiding citizen?
A. As far as I know, he’s a very law-abiding citizen.

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Bluebook (online)
630 S.W.2d 740, 1982 Tex. App. LEXIS 3797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-state-texapp-1982.