Berry v. State

ONION, Presiding Judge,

concurring.

I reluctantly concur in the result reached. The question of whether the evidence is sufficient to show that the rape was aggravated under the terms of V.T.C.A., Penal Code, § 21.03, is presented. The fact situation is similar to that of Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), where the conviction was reversed because the evidence did not show the rape to be aggravated. The question presented is close.

V.T.C.A., Penal Code, § 21.02 (Rape), in effect at the time of the offense, reads as follows:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution;
“(3) she has not consented and he knows she is unconscious or physically unable to resist;
“(4) he knows that as a result of mental disease or defect she is at the time of the intercourse incapable either of appraising the nature of the act or of resisting it;
“(5) she has not consented and he knows that she is unaware that sexual intercourse is occurring;
*491“(6) he knows that she submits or participates because she erroneously believes that he is her husband; or
“(7) he has intentionally impaired her power to appraise or control her conduct by administering any substance without her knowledge.
“(c) An offense under this section is a felony of the second degree.”

V.T.C.A., Penal Code, § 21.03, provides, in pertinent part, as follows:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 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 rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.”

Thus, before rape can become aggravated rape, it must be alleged and proven that the aggravating circumstances exist.

The indictment alleged that on or about October 20, 1974 appellant did:
“. . . knowingly and intentionally by force and threats have sexual intercourse with P_ 0_, a female not his wife, without the consent of the said P_ 0_ and the said Defendant did then and there knowingly and intentionally compel the said P_ 0_ to submit to the said act of sexual intercourse by the threat of death and serious bodily injury to be imminently inflicted on the said P-0-..."

It is seen then that it is alleged that appellant committed the offense of aggravated rape by threat of death and serious bodily injury.

The evidence reflects that as the prosecu-trix left a public telephone booth on the night of the offense she was approached by the appellant, who said something she did not understand. He grabbed her arm and placed a sharp object at the back of her neck and said he wouldn’t hurt her if she would do what he said. She felt a strong pain in her arm where the appellant grabbed her. She did not know what the sharp object was and never did see it. She stated it felt like a knife, but admitted that there was a real possibility that it wasn’t a knife.

Appellant dragged the prosecutrix to his nearby car and told her to sit in the driver’s seat. She did and was then told to move to the passenger’s seat. She related she struggled unsuccessfully but did not scream because of fear. Appellant locked the door and proceeded to drive. He asked the pros-ecutrix her name and told her he wanted to “make love” to her. After they had driven about half a mile, appellant gave the prose-cutrix a marihuana cigarette and told her to smoke it, and she did because she was afraid not to do so. He told her several times he wouldn’t hurt her if she did what he told her to do.

Appellant made several stops during which he talked to various people but did not leave the ear. At one stop he acquired glasses and poured wine into them and offered one to the prosecutrix, which she took and sipped. Eventually, appellant took the prosecutrix to an apartment where he locked the doors after their entry. After a brief conversation, appellant took the prose-cutrix to an upstairs bedroom where he removed her clothes and his and raped her. He then returned the prosecutrix to the location from which she had been abducted. She returned to her apartment nearby, made an outcry to her roommate and the police were called.

The evidence is clearly sufficient to show rape, and the appellant does not contend otherwise. He contends it was not shown to be aggravated rape as alleged. The prosecutrix testified that at no time did the appellant threaten to kill or make any threat of death, thus the inquiry is limited to whether there was a threat of serious bodily injury.

V.T.C.A., Penal Code, § 1.07(a)(34), defines serious bodily injury as:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of *492death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

In the instant ease the appellant placed an unidentified object against the prosecu-trix’ neck and told her she would not be “hurt” if she did what he told her. This statement was repeated several times during the time the prosecutrix was with the appellant. She never saw the object placed against her neck, nor did she at any time see a knife or other weapon in appellant’s hands or on or about his person. She testified that she was not hit, punched or mistreated in any way other than the rape itself, and that she had not suffered any injuries or bruises.

In Rogers v. State, supra, the defendant struck the prosecutrix in the face when she answered the door. She was knocked back against a table and onto the floor, told to take her clothes off and then she was raped. The prosecutrix stated that the defendant did not display any weapon, did not threaten to kill her, and did not hit or hurt her after he first appeared at her door. She related he did threaten to “hurt” her if she wasn’t quiet or didn’t keep her “mouth shut.” Her visible injuries were two black eyes and a swollen nose, which were x-rayed at the hospital.

In Rogers v. State, supra, the court wrote:

“The cases above illustrate the proof necessary for a finding of a threat of serious bodily injury. In each case where this Court held the evidence was sufficient to support a conviction under Sec. 21.03, there was a showing that a gun or knife was used, or a threat to kill the victim was made, or serious bodily injury was inflicted, or a combination of two or more of these factors. (Footnote omitted.) Only in Blount, [524 S.W.2d 164] supra, where the proof did not show that any of these three acts had occurred, did the Court fail to find the evidence supported a conviction for aggravated rape. In the present ease, as in Blount, no showing has been made that any weapon was used, or a threat to kill made, or serious bodily injury inflicted.
“The injuries testified to by the prose-cutrix were not serious bodily injuries as defined by Sec. 1.07(a)(34), supra. Her own testimony also establishes that no threat on her life was made, nor was any knife, gun, or other weapon used. We find that the evidence was insufficient to prove the aggravated circumstances required under Sec. 21.03, supra.”

In Rogers, as in the instant case, there were no serious bodily injuries and no threats of death. In both cases the only threat was to “hurt” and neither prosecu-trix saw any gun, knife or other weapon. The difference is that in the instant case the appellant placed a sharp object that felt like a knife against the prosecutrix’ neck when the initial threat was made. Further, the evidence reflects that a police officer found a putty knife in the car that appellant had been using several hours after the alleged offense. When it is considered that threats may be communicated by actions and deeds, as well as words, Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977), and when the evidence is viewed in the light most favorable to the jury’s verdict, I concur in the result reached.