Sears v. State

651 S.W.2d 263, 1982 Tex. Crim. App. LEXIS 924

• Court: Court of Criminal Appeals of Texas
• Decided: May 26, 1982
• Docket: 61,677
• Status: Published

Opinions

OPINION

CLINTON, Judge.

In this appeal from a judgment of conviction for the offense of attempted rape appellant contends that part of the charge to the jury applying the law to the facts is fundamentally defective in several respects, and he is correct.

V.T.C.A. Penal Code, § 15.01 proscribes criminal attempt as follows:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” ¹

Conformably, in pertinent part the indictment in this cause alleged that on a given date and in the stated place appellant did

“then and there with the specific intent to commit the offense of rape, attempt to have sexual intercourse with [complainant], a female not his wife, without the consent of said complainant, by knowingly and intentionally using force and threats; said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended... ”

Notwithstanding the statutory statement of the offense and the elements of the offense alleged in the indictment, the court authorized the jury to find appellant guilty if it found that on the given date and in the stated place appellant did

“without the consent of [complainant], a female, and by the use of force, attempt to have sexual intorcorse [sic] with the said [complainant], and that the said [complainant] was not then and there the wife of said defendant, then you will find the defendant guilty of attempted rape . . ."

To even a casual reader it is obvious that the charge omits so many elements stated in the statute and alleged in the indictment, underscored above, that it does not even state an offense. Thus, the charge permits a finding of guilt for use of some force in an effort to have sexual intercourse with a nonconsenting female. Such is not yet denounced by the penal law of this State.

A charge of the court that authorizes conviction for noncriminal conduct is fundamentally erroneous. Cumbie v. State, 578 S.W.2d 732, 735 (Tex.Cr.App.1979). See generally Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App., 1982).

The judgment of conviction is reversed and the cause remanded.²

Before the court en banc.

1 . All emphasis is added by the writer of this opinion unless otherwise indicated.

2 . In his fourth ground of error appellant claims the trial court erred in admitting during the punishment hearing a penpacket showing a pri- or conviction of appellant in the State of Arkansas since a paper in the packet recites that appellant was tried on an information. The ground of error is overruled because while testifying in his own behalf during the guilt phase appellant admitted he had been “duly and legally convicted” of the offense shown in the penpacket and because when the packet was offered by the State appellant’s sole objection was that “it is hearsay.” Watkins v. State, 572 S.W.2d 339, 343 (Tex.Cr.App.1978); Campbell v. State, 521 S.W.2d 636, 637 (Tex.Cr.App.1975).