Travis v. State

697 S.W.2d 786, 1985 Tex. App. LEXIS 12204
CourtCourt of Appeals of Texas
DecidedSeptember 11, 1985
DocketNos. 05-84-00515-CR, 05-84-00516-CR
StatusPublished
Cited by3 cases

This text of 697 S.W.2d 786 (Travis 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
Travis v. State, 697 S.W.2d 786, 1985 Tex. App. LEXIS 12204 (Tex. Ct. App. 1985).

Opinion

HOWELL, Justice.

Stephen Boyd Travis appeals from convictions for aggravated kidnapping and aggravated sexual abuse of a child. He complains that there is insufficient evidence to support the convictions, that the charge was fundamentally defective, and that the trial court erred in denying appellant’s motion for severance. We hold that the evidence is sufficient, and, finding no reversible error, affirm both convictions.

The complainant, a 13-year-old girl at the time of the offense, testified as the sole witness to the events. On July 30, 1983, the complainant voluntarily rode with appellant and his father, Bennie Wayne Travis,1 to visit a mutual friend and then go to a “derby.” After leaving the friend’s apartment, the Travises stopped at a roadside park, left the car and spoke for several minutes. They next stopped at a liquor store where the Travises bought beer, vodka, and orange juice. They also agreed to give a man a ride to Lake Ray Hubbard; he rode in the back seat. On the way to the lake appellant’s father put his hand on the complainant’s leg, but finally stopped at her request.

When the four arrived at the lake and while still in the car, the three men held the complainant’s head and arms and forced her to drink several glasses of vodka and orange juice. When the complainant resisted, appellant’s father pulled out a switch blade knife and put it up to her chin threatening to kill her if she did not drink and cooperate. The third man left, but appellant and his father continued to force the complainant to drink vodka. The complainant became nauseous, and, already scared, asked to be taken home.

During this time and shortly before leaving the lake appellant took the driver’s seat. Appellant refused to take the complainant home, but when she began to retch in the front seat, the two men allowed her to lean out of the car, over appellant’s lap. Complainant tried to crawl out of the car, but appellant pulled her back in. The complainant continued to ask to be taken home, but appellant refused and told her to suffer.

Appellant began driving; his father began putting his hands on the complainant and eventually raped her while appellant drove the car. Appellant laughed during the ordeal. They returned to the lake where the complainant managed to get out of the car and run away.

Helen Denham testified that the complainant came to her house late on the night of the offense looking ragged, filthy, and scared. The doctor who examined the complainant that night testified that her condition was consistent with recent sexual intercourse and clearly indicated penetration.

Appellant first maintains that there is “no evidence that appellant had any intent to assist his father in the abduction of the complainant or in the sexual assault.” We disagree. “[A] person is criminally responsible as a party to an offense if the offense is committed ... by the conduct of another for which he is criminally responsible.” TEX.PENAL CODE ANN. § 7.01(a) (Vernon 1974). “A person is criminally responsible for an offense committed by the con[788]*788duct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. ...” TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974).

It is an accepted premise that, on appeal the evidence must be viewed in support of the verdict. There is evidence of the appellant’s own conduct from which the jury could have found him guilty of kidnapping. TEX.PENAL CODE ANN. § 20.03 (Vernon 1974). Appellant’s conduct in preventing complainant from exiting the car and in forcing her back into the vehicle satisfied the statute’s requirement. “[0]ur law imposes no minimal requirement for restraint other than that the interference with the victim’s liberty be substantial.” Rodriguez v. State, 646 S.W.2d 524, 527 (Tex.App.Houston [1st Dist.] 1982, no pet.) (forcing complainant into her car and restraining her there for four minutes amounts to kidnapping.); Bowers v. State, 570 S.W.2d 929 (Tex.Crim.App.1978).

However, appellant was convicted of aggravated kidnapping which, in the context of this case, required evidence of an abduction “with the intent to ... violate or abuse [her] sexually.” TEX. PENAL CODE ANN. § 20.04(a)(4) (Vernon 1974). Appellant’s prime contention in this area is that there is no evidence of his complicity in the rape. Thus, he argues that he can neither be convicted of aggravated kidnapping nor rape.

Of course, mere presence at the scene is insufficient evidence of guilt. Suff v. State, 531 S.W.2d 814, 817 (Tex.Crim.App.1976). But, the evidence here goes further. Beginning with the stop at the roadside park, the automobile trip was a mutual endeavor. Father and son conferred together outside of complainant’s hearing. Thereafter, they bought liquor and took complainant to a destination of their choosing. They forced her to drink some of it. They acted mutually to restrain her. When the father ravaged her, appellant expressed neither surprise nor disapproval; there was not so much as a word of remonstrance. Instead, his laughter can be interpreted as condoning the crime, if not approving it. He continued to drive the auto around with no apparent destination in mind; they returned to their approximate point of departure. The jury could have legitimately inferred that the purpose of driving around was to afford the father an opportunity to commit the rape. There is no other explanation of this particular activity. After the father had obtained his satisfaction, he took the wheel and while the two men were changing places, complainant escaped. The evidence raises the inference that appellant was about to take his turn in violating the complainant.

In deciding if the defendant was a party to an offense, it is permissible to look at the events transpiring before, during and after the offense; common actions indicate the pursuit of a common design. Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Crim.App.1978). Without doubt, appellant’s actions throughout this episode did, in fact, assist the father in the accomplishment of the rape. The father’s purpose was both encouraged and aided by appellant’s actions. The only legitimate question is one of intent. Did he intend to “promote or assist” the offense? If so, appellant is guilty of both offenses. Intent may only be proved indirectly; it must always be inferred from the defendant’s actions. We find enough common action and community of interest to sustain the jury’s finding of intent. See O’Neal v. State, 109 Tex.Cr.R. 486, 5 S.W.2d 521, 525 (1928). The evidence suggests no purpose for the forcible excursion with this complainant other than the offense accomplished.

Appellant cites Olever v. State, 626 S.W.2d 105 (Tex.App.-Beaumont 1981, no pet.); Urtado v. State, 605 S.W.2d 907 (Tex.Crim.App.1980); and Suff, 531 S.W.2d at 814, but these authorities are distinguishable.

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Sanders v. State
834 S.W.2d 447 (Court of Appeals of Texas, 1992)
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730 S.W.2d 75 (Court of Appeals of Texas, 1987)

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Bluebook (online)
697 S.W.2d 786, 1985 Tex. App. LEXIS 12204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travis-v-state-texapp-1985.