dissenting.
Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.
This appeal is from a judgment of conviction for aggravated sexual abuse. The alleged date of offense was March 1, 1980. Therefore, appellant was tried under the prevailing statute of that date Tex.Penal Code Ann. § 21.05 (Vernon 1974).
Appellant in his first point of error asserts that the evidence was insufficient to support the element of aggravation as found by the jury. The majority on this *223panel disagreed and affirmed the conviction. I agree with appellant’s contention and would reverse and remand the cause to the trial court for entry of an order of aequittál.
The basis of the charge against appellant is section 21.05(a)(2) of the Texas Penal Code which was repealed September 1, 1983. Section 21.05 of the Texas Penal Code (1974) provides:
Aggravated Sexual Abuse
(a) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code or 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) compels submission to the sexual abuse by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
(b) An offense under this section is a felony of the first degree.
The Legislature has defined serious bodily injury in the Texas Penal Code section 1.07(a)(34), as follows:
(34) “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
The second count of the indictment upon which the instant conviction was based alleged the appellant “did then and there unlawfully with intent to arouse the sexual desire of the defendant and by force and by threatening the imminent infliction of serious bodily injury and death to and without the consent of P_L_J-, a person not his spouse, have deviate sexual intercourse with her by placing his penis in her mouth.”
The indictment thus charged aggravated sexual abuse under the Texas Penal Code section 21.05(a)(2), compelling submission to the sexual abuse by threatening imminent infliction of serious bodily injury and death.
The question presented by this appeal is whether the evidence was sufficient to support a conviction of aggravated sexual abuse as alleged and, more particularly, whether the element of aggravation as alleged under the Texas Penal Code section 21.05(a)(2) was proven. The aggravating elements contained in section 21.05(a)(2), which elevate the offense of sexual abuse to aggravated sexual abuse, are identical to those contained in section 21.03(a)(2), which elevate the offense of rape to aggravated rape.
In Rucker v. State, 599 S.W.2d 581, 586 (Tex.Crim.App.1979) (opinion on rehearing) the Court of Criminal Appeals stated, citing Rogers v. State, 575 S.W.2d 555 (Tex.Crim.App.1979), “Absent an express verbal threat, evidence was sufficient to prove aggravated rape under said section 21.-03(a)(2) only when a gun, knife, or a deadly weapon was used, or serious bodily injury was in fact inflicted.”
Since the aggravating elements contained in section 21.05(a)(2) of the Texas Penal Code (1974) are identical to those contained in section 21.03(a)(2), I conclude that the same proof is necessary to establish them.
In our case no serious bodily injury was in fact inflicted and no deadly weapon was used or displayed. Therefore, the inquiry becomes whether the verbal threats made by appellant amounted to a threat of death or serious bodily injury. A threat can be communicated or conveyed other than by words. Actions and deeds may also constitute threats. Seaton v. State, 564 S.W.2d 721 (Tex.Crim.App.1978).
The complaining witness testified she was abducted by appellant after he rear-ended her car with his vehicle. She exited her car to inspect the damage. She testified that as she tried to get back into her car, appellant “grabbed” her hand, “pulled me out of the car,” “wrestled with me”, said “Don’t scream. Don’t you dare scream,” and “threw me in [his truck].” When the complainant tried to open the truck door to escape, appellant “got very violent, as far as just smacking me *224around.” Appellant drove her to an unpopulated area and subjected her to two and one-half hours of sexual abuse. During this time the complainant stated appellant “grabbed my neck” and said: “I could hurt your neck real bad,” or, “I could hurt you real bad.” She also stated that at one point, when she tried to escape, “he grabbed me again and pushed me down in the seat and told he would hurt me pretty bad if I tried that again.” She also stated, “I thought for sure I was going to be killed” and that appellant put her in fear of imminent serious bodily injury.
I am of the opinion the verbal threats made by appellant to the complainant were not of such a nature amounting to a threat of death or serious bodily injury. Therefore, I would hold the evidence is insufficient to support the element of aggravation as found by the jury.
I would reverse and remand the cause to the trial court for entry of an order of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).