I respectfully dissent.
Appellant, in his sole ground of error, complains that the evidence was insufficient to support the conviction for aggravated sexual abuse. TEX.PENAL CODE ANN. §§ 21.05 (Vernon Supp. 1982-83). Aggravated sexual abuse as amended effective September 1, 1981, provides in pertinent part, viz:
(A) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code of sexual abuse of a child as defined in Section 21.10 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) by acts, words, or deeds places the victim in fear of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone; or
(3) by acts, words, or deeds occurring in the presence of the victim threatens to cause death, serious bodily injury, or kidnapping to be inflicted on anyone; or
(4) uses or exhibits a deadly weapon in the course of the same criminal episode; or
(5) the victim is younger than 14 years.
This section of the Penal Code was repealed effective September 1, 1983. Act of June 19, 1983, ch. 977, §§ 12, 1983 Tex.Gen Laws, p. 5321. The offense in this case occurred on January 6, 1983. Therefore, the disposition of this case is controlled by TEX.PENAL CODE ANN. §§ 21.04 21.05 (Vernon Supp. 1982-83).
Appellant concedes that there is sufficient evidence to support a conviction for sexual abuse under TEX.PENAL CODE ANN. §§ 21.04, supra. However, he specifically complains of insufficient evidence to prove that he compelled submission or participation by force and by threats communicated by acts, words, or deeds that placed the complainant in fear of death, serious bodily injury, or kidnapping, to be imminently inflicted.
The standard for reviewing a sufficiency of the evidence question requires a determination, after viewing the evidence in the light most favorable to the prosecution, of whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearingdenied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981). Proof beyond a reasonable doubt is essential under the due process clause of the Fourteenth Amendment. *Page 698 In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). "When such a conviction [that was obtained even when no rational trier of fact could have found guilt beyond a reasonable doubt] occurs in a state trial, it cannot constitutionally stand." Jackson v. Virginia,443 U.S. at 317-18, 99 S.Ct. at 2788-89.
Appellant's version of the facts, which is uncontradicted, established that there were no verbal threats to cut her with the knife, and that the complainant was not physically injured. The police officer testified he did not see any bruises, torn clothing, or other evidence that the complainant was in a struggle. It is apparent that the conviction for aggravated sexual abuse was predicated on the fact that appellant exhibited a knife. See Hargrove v. State, 579 S.W.2d 238, 239 (Tex.Crim.App. 1979).
A knife is not a deadly weapon per se. Limuel v. State, 568 S.W.2d 309,311 (Tex.Crim.App. 1978). The State must therefore prove that the knife is a deadly weapon through the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Alvarez v. State, 566 S.W.2d 612,614 (Tex.Crim.App. 1978). Serious bodily injury is defined in part, as injury that causes protracted loss or impairment of the function of any bodily member or organ. TEX.PENAL CODE ANN. §§ 1.07(a)(34) (Vernon 1974). In this case, the knife was not offered in evidence and there was no testimony describing the knife or its size; the evidence is wholly insufficient to prove that the knife was a deadly weapon. Beller v. State, 635 S.W.2d 739, 740 (Tex.Crim.App. 1982).
The complainant testified that appellant told her he didnot want to hurt her. Appellant did hold the knife to her back but he never used it to stab her nor did he threaten to cut her. Concededly, a threat can be communicated by actions, words, and deeds. Seaton v. State, 564 S.W.2d 721,724 (Tex.Crim.App. 1978). But the Seaton case was overruled by Rucker v. State, 599 S.W.2d 581, 586 (Tex.Crim.App. 1979) (On State's Motion for Rehearing), which provides the more exact standard: "Absent an express verbal threat, evidence was sufficient to prove aggravated rape, when a gun, knife, or a deadly weapon was used, or serious bodily injury was in fact inflicted." Rogers v. State, 575 S.W.2d 555 (Tex.Crim.App. 1979) was cited with approval, but the analogous reference to the use of a knife indicated in Rogers and Rucker was predicated on the proven facts in Church v. State, 552 S.W.2d 138 (Tex.Crim.App. 1977), where the defendant threatened the victim by placing the knife to her throat. One of the essential elements of the offense charged by indictment in the instant case was that appellant did then and there intentionally and knowingly, by acts, words, and deeds, placed the complainant in fear of serious bodily injury to be imminently inflicted. The acts, words, and deeds in this case are not sufficient to support an inference of a threat to cause serious bodily injury to be imminently inflicted. Thus, I find from the record insufficient evidence to prove beyond a reasonable doubt the aggravating circumstances necessary to support a conviction for aggravated sexual abuse, i.e., that appellant used or intended to use the knife so as to inflict serious bodily harm or death. See Tisdale v. State, ___ S.W.2d ___, No. 743-83 (Tex.Crim.App., June 6, 1984) (not yet reported); Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App. 1983).
Accordingly, I would reverse and remand for resentencing pursuant to TEX.PENAL CODE ANN. §§ 21.04 (Vernon Supp. 1982-83) (sexual abuse). See Greene v. Massey, 437 U.S. 19,98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). *Page 699