OPINION ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.Under the former Penal Code, rape was a capital offense. Articles 1183-1189, V.A. P.C., 1925.
Article 1189, V.A.P.C., 1925, provided:
“A person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five.”
Article 1183, V.A.P.C., 1925, defined rape.
Article 1184, V.A.P.C., 1925, provided:
“The definition of ‘force’ as applicable to assault and battery applies also to rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.”
Article 1185, V.A.P.C., 1925, provided:
“The threat must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.”
Fraud was defined in Article 1186, V.A. P.C., 1925.
*585When the current Penal Code was enacted, the death penalty was limited to capital murder. See V.T.C.A., Penal Code, §§ 19.03 and 12.31.
Rape became a second degree felony1 under the current Penal Code, V.T.C.A., Penal Code, § 21.02, and aggravated rape became a first degree felony.2 V.T.C.A., Penal Code, § 21.03.
V.T.C.A., Penal Code, § 21.02, provides:
“(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, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm;
“(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;
“(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.”
It is thus clear that rape under said § 21.02(a), (b)(1) and (2) can be committed by “force” or “threat.” Both terms are broadly defined.
V.T.C.A., Penal Code, § 21.03 (Aggravated Rape), provides in part:
“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 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. (b) * * * ”
The Legislature defined bodily injury in V.T.C.A., Penal Code, § 1.07(a)(7), as follows: “(7) ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.” It defined serious bodily injury in V.T.C.A., Penal Code, § 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 first count of the indictment upon which the instant conviction was based alleged the appellant “did then and there unlawfully, intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to P_K_O_, a female not his wife and hereafter styled the complainant, *586have sexual intercourse with complainant and without the consent of the complainant.”
The indictment thus charged aggravated rape under V.T.C.A., Penal Code, § 21.-03(a)(2) — compelling submission to rape 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 for aggravated rape as alleged. More particularly, the question is whether the element of aggravation as alleged under V.T.C.A., Penal Code, § 21.-03(a)(2), was proven. The facts of the rape were set out in the opinion on original submission. They need not be repeated. The prosecutrix’s bodily injuries consisted of black and swollen eyes, a swollen face, cuts inside her lips, bruised chest and breasts, scratched and abraded buttocks and legs, a rash from poison ivy, and pain. Most of these injuries were the result of appellant hitting the prosecutrix in the face and chest with his fist. She suffered no concussion, no broken bones, no internal injury, no serious permanent disfigurement, and no protracted loss or impairment of any part of her body. She did not suffer “serious bodily injury” as that term is defined by V.T.C.A., Penal Code, § 1.07(a)(34). Further, there was no evidence of any express verbal threat to compel submission to rape. No weapon was displayed, seen or used. Thus, the question of whether the element of aggravation alleged was proven arises.
There can be no question that a threat can be communicated or conveyed other than by words. Actions and deeds may also constitute threats (see Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Berry v. State, 579 S.W.2d 487 (Tex.Cr.App.1979); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977); Williams v. State, 500 S.W.2d 163 (Tex.Cr.App.1973). This has been the rule both before and after the enactment of the current Penal Code.
The problem that presents itself in the instant case is whether the actions and deeds of the appellant were sufficient to sustain the allegations of the indictment and to constitute the threat alleged. Perhaps stated another way, when there is no verbal threat, when do actions and words constituting a threat become more than force (that overcomes such earnest resistance as might reasonably be expected under the circumstances) and more than any threat (that would prevent resistance by a woman of ordinary resolution) so as to constitute an element of aggravation under V.T.C.A., Penal Code, § 21.03(a)(2) — a threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone? Surely the Legislature intended that the threat of death or serious bodily injury contemplated something more than “force” and “threat” as used in V.T.C.A., Penal Code, § 21.02 (ordinary rape). Otherwise every time “force” (actions and deeds) was used there would automatically be aggravated rape as it would be considered a threat of serious bodily injury. In Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), it was held that, absent an express verbal threat, evidence was sufficient to prove aggravated rape under said § 21.03(a)(2) only when a gun, knife, or a deadly weapon was used, or serious bodily injury was in fact inflicted. In absence of a verbal threat, we conclude Rogers was correct in interpreting V.T.C.A., Penal Code, § 21.03(a)(2), as reflecting the legislative intent. To the extent that Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978), is in conflict, it is overruled.
Appellant’s counsel suggests that all the current Penal Code has done is created confusion and that the code should be amended to create a single first degree felony offense of rape with the assessor of punishment having the right to fix the penalty within a wide range of punishment depending upon the circumstances involved. This is a commendable view that the Legislature should seriously consider. We note it in passing.
Concluding the evidence is insufficient to support the conviction for aggravated rape, *587we overrule the State’s motion for rehearing.
DOUGLAS and DALLY, JJ., dissent.. V.T.C.A., Penal Code, § 12.33, provides:
“(a) An individual adjudged guilty of a felony of the second degree shall be punished by confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years.
“(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.
. V.T.C.A., Penal Code, § 12.32, provides:
“An individual adjudged guilty of a felony of the first degree shall be punished by confinement in the Texas Department of Corrections for life or for any term of not more than 99 years or less than 5 years.”