Wheeler v. State

352 S.W.2d 133, 171 Tex. Crim. 528, 1961 Tex. Crim. App. LEXIS 4539

• Court: Court of Criminal Appeals of Texas
• Decided: December 13, 1961
• Docket: No. 33,901
• Status: Published

Opinion

WOODLEY, Presiding Judge.

The offense is assault with intent to rape; the punishment, 5 years.

Trial was upon a plea of guilty before the court, a jury having been waived in the manner provided by statute.

The 15-year-old prosecutrix testified and appellant’s confession was introduced without objection. This evidence shows that about 4 P.M. the prosecutrix got off the school bus and was walking toward her home when appellant stopped his car in front of her, pointed a gun at her and told her to get in. She complied and he drove to a wooded area on a side road, had her remove most of her clothes and lie down on the car seat. He put his legs between her knees forcing her legs apart and put his hand on her leg. He leaned over on her, and as he made a move as to unzip his trousers, the prosecutrix fought and kicked him and he said “O.K. girl, I will kill you.” She replied “Well, you will just have to go ahead.”

Appellant threw up his hands, said he just “wanted to see what kind of a girl I was — wanted to see if I had any fight in me.” He then told her she could put her clothes on and he drove her home.

Appellant testified that he was sorry for what he had done. He offered evidence to the effect that he was married and had two small children, one born after the assault on the prosecutrix.

We find the evidence sufficient to sustain the conviction and no reversible error appears. See Tucker v. State, 157 Tex. Cr. R. 259, 247 S.W. 2d 901; Tex. Jur. Vol. 35, p. 803, Sec. 18.

The judgment is affirmed.