Rucker v. State

DOUGLAS, Judge,

dissenting.

The majority holds the aggravated rape cannot be proved by showing an implicit, physical threat. This holding is based on our decisions in Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), a decision by a two-judge panel, one of whom concurred in result only. Rogers represented a departure from our prior holdings. This writer cannot agree that a jury is not authorized to conclude that the repeated striking of a victim, while insisting upon sexual intercourse, constitutes a threat of more serious harm if she refuses.

In Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978), an aggravated rape of a child prosecution, the defendant contended that the evidence was insufficient. The only evidence indicating a threat of serious bodily injury was the prosecutrix’ testimony that Seaton had struck several times on the face. She sustained “bruises on her face and head, two black eyes and other bruises on her body.” We observed:

*584“The term ‘threats’ is not limited to the use of verbal aggression but may include acts amounting to an offer to use future force. Threats may be communicated by actions, words or deeds.”

We then concluded that:

“[Seaton’s] acts in beating her, as she testified, constituted sufficient evidence of a threat of serious bodily injury to this prosecutrix.”

In Berry v. State, 579 S.W.2d 487 (Tex.Cr.App.1979), we again were confronted with a challenge to the sufficiency of the evidence to prove that the rape was aggravated. The prosecutrix testified that Berry grabbed her hard and placed a sharp, flat object against her neck. The object felt like a knife. Berry told her she would not be hurt if she cooperated. We again observed that a threat of serious bodily injury could be proved by acts and held that the evidence was sufficient.

In Rogers v. State, supra, the evidence showed that the defendant struck a single hard blow that blackened both of the victim’s eyes and knocked her to the floor. No other threat was made and Rogers did not strike the prosecutrix again. We held that that evidence was insufficient to show a threat of serious bodily injury.

In the instant case, the majority ignores both Seaton and Berry. They concluded that repeated physical blows that caused “black and swollen eyes, a swollen face, cuts inside her lip, bruised chest and breasts, scratched and abraded buttocks and legs . . . and pain,” were not a threat of serious bodily injury. These injuries were more severe than those inflicted in either Seaton or Berry. Although Berry is somewhat complicated by the possibility of a knife being used, Seaton and the instant case present a clear conflict.

This writer can perceive no reason to hold that a threat cannot be conveyed implicitly by physically beating the victim. Logic compels us to conclude that if a rapist repeatedly strikes his victim while insisting that she have intercourse, then should she refuse to cooperate he will escalate the force he is applying. Rogers, to the extent that it holds a single hard blow is insufficient to prove a threat, can be factually distinguished from Seaton and the instant case. To the extent that Rogers can be read to hold that a threat can never be proved with evidence of physical aggression, Rogers should be overruled.

In the instant case, Rucker traumatized his victim through repeated physical aggression. The blows he struck caused greater injury than the blows struck in Seaton. The jury, after hearing all the facts, was authorized to conclude that these blows constituted a threat of serious bodily injury should the prosecutrix not cooperate.

The judgment should be affirmed.

Before the court en banc.