Wright v. State

527 S.W.2d 859, 1975 Tex. Crim. App. LEXIS 1062

Opinions

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for statutory rape under Article 1183 of the former Penal Code wherein the punishment was assessed at 30 years’ imprisonment by the jury after the appellant had elected to be punished under the new Penal Code.

The indictment which was presented on May 23, 1973, alleged the offense occurred “on or about 10th day of May, A.D. 1973”. The trial commenced on May 6, 1974, after the effective date of the new Penal Code (January 1, 1974). Since the proper resolution of several of appellant’s grounds of error revolves around the fact the alleged offense occurred before the effective date of the new Penal Code and trial was conducted thereafter, we set forth the Saving Provisions accompanying the enactment of the new Penal Code which are particularly applicable to the grounds of error involved.

“Sec. 6. Saving Provisions, (a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. For purposes of this section, an offense is committed on or after the effective date of this Act if any element of the offense occurs on or after the effective date.

(b) Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an .offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, ‘conviction’ means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.

(c) In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.”

Initially appellant urges the trial court erred in refusing to dismiss the indictment in light of Section 6(b) of the above quoted Saving Provisions. He advances the contention that since the offense of statutory rape under Article 1183, V.A.P.C.1925, includes as an element of that offense a requirement that the complaining witness be under 18 years of age and since the offense of rape of a child under the new Penal Code (V.T.C.A., Penal Code, Section 21.09) requires that the complaining witness be under 17 years of age, Section 6(b), supra, calls for dismissal. We do not agree. Section 6(b), supra, speaks to “conduct constituting an offense”. It does not provide that any offense under the former Penal Code must be carried forward into the new Code with precisely the same elements in order to avoid dismissal under Section 6(b), supra. Practically every offense carried forward has been altered in language and many consist of different elements and some have been divided into separate offenses. Section 6(b), supra, however, only requires dismissal in those cases where the “conduct constituting the offense” under the former Code no longer constitutes an offense. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975). It is clear that the conduct of the appellant which constituted an offense under the former statutory rape statute also constitutes an offense under the new rape of a child statute. Specifically with respect to the issue of age, it was uncontroverted the prosecu-trix was under 17 years of age at the time of the offense, to-wit: 15 years of age, rendering the “conduct” in that respect within the prohibition of both the old and new statutes. If the prosecutrix had been 17 years of age, a different question would have been presented. See Ex parte Davila, (Tex.Cr.App.No. 50,334 delivered 7/16/1975).

Appellant’s contention is overruled.

Appellant next complains of the trial court’s action in granting the State’s motion in limine prohibiting evidence of the prosecutrix’s unchastity until the issue of consent was raised. Appellant acknowledges that under Article 1183, V.A.P.C. 1925, this Court has repeatedly held that if the prosecutrix is 15 years or older the accused in consent cases may show, as a defense, that she was not of previous chaste character, but that unchastity is no defense to prosecution where there is no issue of consent. See Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Lewis v. State, 500 S.W.2d 167 (Tex.Cr.App.1973); Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970). Appellant reasons that sexual promiscuity is a defensive issue by nature of V.T.C.A., Penal Code, Section 21.09(b) regardless of whether consent is made an issue. Appellant perfected his claim for review by showing what evidence he would have offered. We find appellant’s contention to be without merit. By virtue of the plain language of Section 6(b) of the Saving Provisions, the criminal action in this case was governed by the prior law. The appellant was charged with statutory rape and was tried for that offense. Section 21.09(b), supra, therefore, was not applicable at appellant’s trial. Only recently in Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975), and in McCarter v. State, 527 S.W.2d 296 (Tex.Cr.App.—delivered 7/16/1975), this court held that the trial court did not err in submitting the defense of insanity under the law as it existed at the time of the commission of the offense although the trial took place after the effective date of the new Penal Code.

Appellant also complains of the trial court’s action in overruling his objection to the court’s charge at the guilt stage of the trial, since such charge permitted the jury to find him guilty of “conduct” which no longer constituted an offense after January 1, 1974. This ground of error is a different shading of the first ground of error and is overruled for the same reason. The submission of statutory rape by the court’s charge was in direct compliance with the dictates of Section 6(b), supra.

In three grounds of error appellant complains that the trial court erred in overruling his objections to the court’s charge at the penalty stage of the trial, since he was not indicted for “conduct” which would constitute the offense of aggravated rape of a child under V.T.C.A. Penal Code, Section 21.03, that the indictment did not allege he compelled submission to rape by threat of death, serious bodily injury or kidnapping, that the verdict forms submitted with the charge permitted the jury to assess punishment for “conduct” for which he had not been indicted.

The appellant was indicted for the former Penal Code offense of statutory rape. This was the offense he was tried for after the effective date of the new Penal Code, and this was the offense for which he was convicted at the guilt stage of the trial. Under the circumstances of this case the appellant remains convicted of the former Code offense despite his written election to be punished under the new Penal Code. Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975).

Here the appellant filed his written election to be punished under the new Penal Code at the commencement of the trial, although he was not required to make this election until the “sentencing hearing begins” (Section 6(c), Saving Provisions, New Penal Code, supra l.¹ As a result of the written election, the trial court was confronted at the penalty stage of the trial with the problem of substituting the new Penal Code penalty provisions for the old Code offense of statutory rape of which appellant was convicted at the guilt stage of the trial. Evidence offered at the penalty stage of the trial involved State’s witnesses who testified that appellant’s reputation for being a peaceful and law-abiding citizen was “bad” and a stipulation of appellant’s prior convictions. The appellant recalled the prosecutrix, who admitted that “less than a year” prior to the alleged offense she had committed an act of sexual intercourse with her boyfriend at that time. It was upon this proof and the evidence offered at the guilt stage of the proceed ings that the trial court had to draft his charge at the penalty stage of the trial in light of the appellant’s election to be punished under the new Penal Code, and varied provisions relating to the offense of rape. This court in its charge informed the jury that the punishment for “rape of a child” was for a term of years not less than two nor more than twenty and a possible fine not to exceed $10,000.² The court also instructed the jury that the punishment for aggravated rape of a child was by confinement for life or any term of years not less than five nor more than ninety-nine.³ The court also instructed the jury what would constitute aggravated rape of a child under the provisions of V.T.C.A., Penal Code, Sec. 21.03. The verdict forms submitted were designed to reflect whether the jury found the rape here involved was aggravated or not. It would appear rape of a child and aggravated rape of a child would be the “conduct” under the new Penal Code which would be the equivalent to the old Code offense of statutory rape for which the appellant was indicted.

There were no objections by the appellant as to that portion of the charge instructing the jury as to the punishment for rape of a child under V.T.C.A., Penal Code, Section 21.03, and as to the verdict forms submitted.

Appellant urges that as he was not indicted for aggravated rape and the indictment did not allege the elements thereof, the court’s charge was in error and the verdict forms as to aggravation should not have been utilized.

The statutory scheme set forth in the above quoted Saving Provisions of the new Penal Code is similar to that found in the Texas Controlled Substances Act, Vernon’s Ann.Civ.St., Article 4476-15, Sec. 6.01(a), (b), (c), which was applied by the unanimous court in Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973) to a case involving a narcotic offense prior to the effective date of the above mentioned statute.⁴

It appears clear that under the “Saving Provisions” of the new Penal Code a defendant convicted of a former Penal Code offense in a trial commencing after January 1, 1974, will be punished under the new Penal Code if the defendant so elects in writing as provided by Section 6(c) of the “Saving Provisions.” Since a defendant, under the circumstances discussed, remains convicted of the old Penal Code offense despite his election to be punished under the new Penal Code, Jefferson v. State, supra, it is obvious the Legislature merely intended to allow him to substitute, at his option, the new Penal Code penalty provisions for the same offense or “conduct” regardless of any variance in the elements between the offense in the old Penal Code and its equivalent counterpart in the new Penal Code without the necessity of additional proof to show that the defendant, having been found guilty of an old Code offense, is also guilty of the new Code offense or “conduct” which may require in and of itself proof of additional elements. As we view it, the Legislature merely intended to give to the defendant upon conviction for an old Code offense a chance to opt for the range of penalties in the new Penal Code, which in many cases included a lower range of penalties.

Further, we conclude that it was clearly not the intent of the Legislature by virtue of the “Saving Provisions” to give the defendant in a criminal case the right, in some cases, to wait until the penalty stage of a bifurcated trial and then cast additional problems of pleadings upon the State by his election to be punished under the new Penal Code. In other words, a defendant indicted for an old Code offense cannot wait until his trial after the effective date of the new Code and then file his written election to be punished under the new Code and claim that certain otherwise applicable penalty provisions of the new Code are inapplicable as punishment because the indictment properly drafted under the old Code did not also contain certain allegations now required under the new Code.

All of this is so because by examining the language of Section 6(b) of the “Saving Provisions” of the new Penal Code it becomes apparent that Section 6(c) thereof was intended to apply to all cases where the “conduct” constituting an old Code offense was carried forward into a new Code offense. As can be seen, Section 6(b) prohibits prosecution after January 1, 1974, of conduct which constituted an offense under the existing law, but does not constitute an offense under the new Code. See, i. e., Ex parte Davila, supra. It further requires dismissal of prosecutions for such offenses at the time of the effective date of the new Code. By using the phrase “conduct constituting an offense” and “conduct that was an offense”, the Legislature limited dismissal to those cases where the act or omission and accompanying mental state for which the defendant stands accused is no longer proscribed by law. Had the word “offense” been used instead, prosecution would have to be dismissed in all cases which the old Code offense was not reenacted without variance in essential elements into a new Code offense. It seems certain that the Legislature would not have saved a great many offenses from dismissal by use of the phrase “conduct constituting an offense” unless such offenses were to have applicable punishment under the new Code.

By consideration of the rules of construction, the fact that Section 6(b) saved many prosecutions from dismissal and the mandatory and non-restrictive language of Section 6(c), it became clear that the Legislature intended to have Section 6(c)’s provisions apply to all cases where the “conduct” which constituted an offense under the old Code also constitutes an offense or offenses under the new Code. We cannot agree that the Legislature intended for Section 6(c) to apply only where the old Code offense was carried forward into the new Code without any change whatsoever. As noted earlier, practically every offense carried forward has been altered in language and many consist of different elements, and some have been divided into separate offenses. We cannot conclude that the Legislature intended that the provisions of Section 6(c) be so limited as to render it almost meaningless. And we do not understand appellant in the instant case to so contend.

Where the equivalent and only counterpart of the old Code offense for which the defendant has been convicted is found in a new Penal Code offense or “conduct”, no real problem of substitution of range of punishment exists. If the judge is to assess punishment, he merely uses the range of penalties under the only and equivalent counterpart in the new Code. If a jury is to assess the punishment, the judge submits to the jury that range of punishment under the new Penal Code.

If several sections of the new Penal Code cover the type of offense or “conduct” under the old Penal Code for which the de fendant is convicted, then the applicable section of the new Code must be determined from the proof if the defendant makes the written election as provided by Section 6(c) to be punished under the new Code. If the trial judge is to determine punishment, no real problem is presented. If a jury is to pass upon punishment, then the trial judge must determine from the proof which section or sections of the new Penal Code are applicable, and to submit the case to the jury under the appropriate sections of the new Penal Code.

This is exactly what the trial judge did in the instant case and we find no merit in appellant’s objections to the charge or the use of verdict forms at the penalty stage of the trial.

Lastly appellant contends the evidence was insufficient to support the verdict of the jury that the rape was aggravated under the provisions of V.T.C.A., Penal Code, Section 21.03.

The record reflects that on May 10, 1973, the prosecutrix, C_A_R_ “skipped” school and met two girl friends, Linda Westbrook and Carrie Herbert Ray at the Dairy Queen in Belton. There the girls met Darrell Wright,⁵ and agreed to go to his house and sand his car. After working on the car, the appellant purchased some wine and they went to a lake where Linda passed out from drinking wine. Subsequently, Linda was taken home and Carrie got out of the car at the courthouse. The prosecutrix, who was driving, offered to drive to Salado and show the appellant where her boyfriend lived and where they had a wreck. When they were on the gravel road where the wreck occurred, the appellant told the prosecutrix to stop and back up. When she did, he grabbed the keys and threw them on the dash, and when the prosecutrix tried to get out of the car, he grabbed her and got her down in the seat. She succeeded in getting out the other door, but appellant again grabbed her, this time around the neck, applying pressure, and told her “not to run off” because he would break her neck. He slapped her in the face several times and when she started screaming, he put his hand over her mouth and nose and told her to “shut up” or that she “would never make it back to town”. After he got her back in the ear, he hit and slapped her and then raped her while she was fighting. A car passed while the act was taking place and the prosecu-trix hollered and screamed for help, but the passing car did not stop. The appellant then made her drive the car fifty or sixty feet down the road and then he had another act of intercourse with her. They then drove to a Texaco service station in Salado, where the appellant left the prosecutrix, who called her boyfriend. Dr. Ralph Wallace, Jr., who examined the prosecutrix after the alleged offense found that she had multiple bruises over her body, “some on her neck, arms, I think on her back and under the back of one knee.”

We conclude that the evidence is sufficient for aggravated rape of a child, as it shows the prosecutrix was compelled to submit by threat of death. See V.T.C.A., Penal Code, Section 21.03. See Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.—delivered this date).

Finding no reversible error, the judgment is affirmed.

Footnotes

1

. The phrase “sentencing hearing” has been interpreted to mean-the penalty stage of the bifurcated trial as contemplated by Article 37.07, V.A.C.C.P., rather than under Article 42.07, V.A.C.C.P. (Reasons to prevent sentence). See Stephenson v. State, 517 S.W.2d 277 (Tex.Cr.App.1975).

2

. V.T.C.A., Penal Code, Sec. 21.09, relates to “rape of a child”, which is a felony of the second degree, the punishment for which is provided by V.T.C.A., Penal Code, Sec. 12.-33.

3

. V.T.C.A., Penal Code, Sec. 21.03, relates in part to aggravated rape of child, which is a felony of the first degree, the punishment for which is fixed by V.T.C.A., Penal Code, Sec. 12.32.

4

. In Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973), this court held that a defendant indicted for possession of marihuana prior to the effective date of the Controlled Substances Act but who elected to proceed under that Act for punishment could not be convicted of a felony where the amount of marihuana involved was less than four ounces. See Sec. 4.05 of Article 4476-15, supra. The trial court found from the un-controverted evidence that the amount involved was less than two ounces, so the offense actually became a Class B misdemeanor. In Jones the difference between the provisions of the Controlled Substances Act and the provisions of Article 13 of the 1925 Penal Code were observed, noting that Article 13 automatically required the punishment to be ameliorated under “the second law” where the offense occurred while one statute and the trial occurred after the penalty for the offense had been reduced unless the defendant elects to receive the higher penalty under “the first law”.

5

. The age of appellant is not reflected, but he was convicted in 1962 of felony offenses.

14

. See part XII.

15

. See part XI, paragraph 2.

16

. See part XI, paragraph 1.

17

. See part XV.

18

. See part XIII.

19

. See part XIV.

2

tt. See part XIV.