dissenting.
This court has found the evidence sufficient to support appellant’s conviction of aggravated sexual assault. I cannot agree.
The indictment charges aggravated sexual assault of Mary Smith (pseudonym) by:
COMPELLING MARY SMITH TO SUBMIT AND PARTICIPATE BY THE USE OF PHYSICAL FORCE AND VIOLENCE AND BY THREATENING TO USE FORCE AND VIOLENCE AGAINST MARY SMITH AND MARY *431SMITH BELIEVED THAT THE DEFENDANT HAD THE PRESENT ABILITY TO EXECUTE SAID THREAT, AND THE DEFENDANT BY ACTS AND WORDS PLACED MARY SMITH IN FEAR THAT DEATH AND SERIOUS BODILY INJURY WOULD BE IMMINENTLY INFLICTED ON MARY SMITH AND THE DEFENDANT BY ACTS AND WORDS OCCURRING IN THE PRESENCE OF MARY SMITH THREATENED TO CAUSE THE DEATH OF AND SERIOUS BODILY INJURY TO MARY SMITH....
In three application paragraphs that tracked the three paragraphs (erroneously designated as counts in the indictment) alleging three different manners and means of committing sexual assault but the same manner and means of committing the aggravating elements, the trial court charged the jury that they would convict appellant of aggravated sexual assault in a general verdict if they found any of the three methods of committing sexual assault of Mary Smith and they also found:
[T]he Defendant by acts or words placed Mary Smith in fear that death or serious bodily injury would be imminently inflicted on Mary Smith, and the Defendant by acts or words occurring in the presence of Mary Smith threatened to cause the death of or serious bodily injury to Mary Smith_ [Emphasis Added.]
The jury, therefore, was required to find not only that appellant compelled Mary Smith to submit or participate by the use of physical force or violence, or by threatening to use force or violence against Mary Smith, which threat Mary Smith believed appellant had the present ability to execute (i.e., the elements of the offense that made the requisite penetration of the female sexual organ of Mary Smith nonconsensual), but also was compelled to find additional elements to elevate the offense to an aggravated sexual assault. The additional elements are that appellant, by acts or words:
1. placed Mary Smith in fear that death would be inflicted on Mary Smith,
OR
placed Mary Smith in fear that serious bodily injury would be imminently inflicted on Mary Smith,
AND
2. threatened to cause the death of Mary Smith,
OR
threatened to cause serious bodily injury to Mary Smith.
TexPeNal Code Ann. § 22.021(a) (Vernon 1994) provides that sexual assault is aggravated if the defendant, by acts or words, places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person OR if the defendant, by acts or words occurring in the presence of the victim, threatens to cause the death, serious bodily injury, or kidnapping of any person.
The law is well settled, however, that if the State increases its burden by pleading more than the statute requires that it prove in order to secure a conviction, the State is bound by its pleading. Fisher v. State, 887 S.W.2d 49, 57 (Tex.Crim.App.1994); Easley v. State, 319 S.W.2d 325, 326 (Tex.Crim.App. 1959). Even when the law permits the elements that have been pled conjunctively to be charged disjunctively in the application paragraph of the court’s charge to the jury, if the jury is charged conjunctively without objection from the State, sufficiency of the evidence must be determined in light of the elements of the indictment as charged in the application paragraph of the jury charge. That is, when the court’s charge to the jury is otherwise correct but places a higher burden on the State, failure to object constitutes an acceptance of that higher burden by the State, and it is bound to sustain that higher burden. Fee v. State, 841 S.W.2d 392, 396 (Tex.Crim.App.1992); Warren v. State, 810 S.W.2d 202, 204 (Tex.Crim.App.1991).
In the case sub judice, therefore, since the State has pled that appellant both placed Mary Smith in fear of death and serious bodily injury and that he also threatened to cause the death of or serious bodily injury to Mary Smith, and since both methods of elevating sexual assault to aggravated sexual assault were submitted to the jury conjunc-*432tively in the application paragraph of the court’s charge, the State is bound to prove both beyond a reasonable doubt.
Properly reviewing the sufficiency of the evidence to support a conviction in the light most favorable to the verdict, the majority improperly finds the evidence sufficient to support a finding of all the essential elements of the offense beyond a reasonable doubt. In reaching its conclusion, the majority carefully delineates the facts upon which it relies in finding the evidence sufficient to support the conviction. It is unclear whether the majority finds that each of these facts constitutes a threat of serious bodily injury or death or whether they judge the cumulative effect to rise to a threat of death or serious bodily injury. It should be pointed out that there is a difference between Smith’s perceiving a threat of death or serious bodily injury as a possible consequence of escalation of the assault and appellant’s intentionally or knowingly communicating a threat of death or serious bodily injury as required by the jury charge.
The facts delineated by the majority are:
1. Appellant entered Smith’s apartment in the middle of the night;
2. he forced Smith to engage in non-eonsensual acts of sexual intercourse;
3. he twice threatened to “hurt” Smith if she did not comply;
4. he possessed physical strength superior to Smith’s;
5. at one point Smith felt something “cold” at her back; and
6. that Smith testified to being in fear for her life and physical wellbeing.
The majority summarizes their analysis of point of error number four, writing “The fact that Smith never saw a weapon and that Dalton never threatened to ‘kill’ Smith does not alter our conclusion.”
In determining whether the factors upon which the majority relies are sufficient evidence of the aggravating element of the offense, it is well to begin with an analysis of the difference between the aggravating element under Tex.Penal Code Ann. § 22.021(a)(2)(A)(ii) (Vernon 1994) and the aggravating element under Tex.Penal Code Ann. § 22.021(a)(2)(A)(iii) (Vernon 1994).
Under the former section 21.03(a)(2),7 the focus was exclusively upon the physical and verbal conduct of the accused and whether it amounted to a threat of imminent infliction of death or serious bodily injury. Under the new section 22.021(a)(2)(A)(ii) the focus shifts to the victim’s state of fear of imminent infliction of death or serious bodily injury induced by the assailant’s acts or words. While, in light of the totality of the circumstances, the fear must be rational, subsection (ii) does not require that the actor intend to cause such fear. Although a threat to cause death or serious bodily injury to a victim would reasonably place that victim in fear of death or serious bodily injury, the law requires no such threat in order to find that the victim’s fear is rational. The mere presence of an assailant in the victim’s home has been found sufficient to satisfy the requisites of subsection (ii). Dacquisto v. State, 721 S.W.2d 603, 605 (Tex.App. — Amarillo 1986, pet. refd). The relatively superior strength of an assailant would also satisfy the requisites of subsection (ii).
When the aggravating factor is alleged pursuant to section 22.021(a)(2)(A)(iii), as in the case sub judice, the focus shifts back to the actions and intent of the defendant. There must be evidence of a threat to cause death or serious bodily injury, whether that threat be verbal or by actions. The El Paso Court of Appeals has pointed out that when the aggravation under the new section 22.021(a)(2) “must be inferred from physical conduct and words of the actor not expressly stating the requisite threat, the words and conduct must amount to more than the quantum of forcefulness needed for a simple sexual assault conviction under TexPenal Code Ann. sec. 22.011(b)(2) (Vernon Supp.1987).” Douglas v. State, 740 S.W.2d 890, 891 (Tex. *433App. — El Paso 1987, no pet.).8 Subsection (iii), however, shifts the emphasis from the subjective fears of the victim to the intent and actions of the assailant.
In Chandler v. State, this court has performed a careful analysis of subsection (iii) and has concluded that subsection (iii) does not constitute an offense separate and apart from simple sexual assault, which would require the pleading of a separate mens rea. Rather, subsection (iii) provides an additional element to simple sexual assault. We look to the mens rea pled in relation to the offense as a whole, that is, in relation to simple sexual assault with the additional aggravating element. Chandler v. State, 855 S.W.2d 38 (Tex.App. — Fort Worth 1993, no pet.).
In this case sub judice, the State has pled that appellant acted intentionally and knowingly in the commission of the offense of aggravated sexual assault. The culpable mental state applies to the aggravating element. The evidence, therefore, must show that appellant acted intentionally or knowingly, not recklessly, in threatening to cause death or serious bodily injury to Smith.
Keeping in mind that the threat must be made intentionally or knowingly and that the injury threatened must “amount to more than the quantum of forcefulness needed” to constitute simple sexual assault, we must examine the evidence.
The majority cites appellant’s entry at night as evidence of a threat of death or serious bodily injury. Smith was asleep when appellant entered her apartment, so we shall assume the majority refers, not to the act of entry, but to the fact of entry and Smith’s realization that appellant had entered her home. While it was reasonable for Smith to be frightened for her “wellbeing” when she realized a strange man was in her bed, this fear does not translate into an intentional or knowing threat of death or serious bodily injury expressed by words or acts. To find otherwise turns every offense involving entry into a home without consent into an aggravated offense. It is equally difficult to imagine that the mere fact of being stronger than the victim would constitute an intentional or knowing communication of a threat of death or serious bodily injury.
The majority also cites nonconsensual sexual intercourse as either the threat of death or serious bodily injury or evidence of the threat of death or serious bodily injury. It is difficult to imagine a more frightening situation than sexual assault by force in the middle of the night at the hands of a stranger. A victim’s expressed fear of serious bodily injury and death is imminently reasonable whenever such an assault occurs. Does this mean, then, that although the legislature has created a distinction between sexual assault by force and aggravated sexual assault under subsection (iii), the courts may act as a super-legislature and strike down such a distinction? Does this court really intend to announce that sexual assault by force and violence or threats of force and violence perforce provides the aggravating threat like some spineless hermaphrodite that coils back to fertilize itself?
As further evidence of a threat satisfying the requirements of subsection (iii), the majority points out that Smith felt something cold on her back. Smith made it clear that she did not know what touched her back. Nor did either attorney ask her whether she felt something hard or soft. She did not testify that whatever touched her back was sharp or pointed. We do not know whether she felt a cold belt buckle, a wet washcloth, or something that could serve as a weapon. We must take the record as it is presented to us. It is not proper for us to fill the gaps in the evidence to shore up missing elements of the offense.
The majority also points to two occasions on which appellant mentioned the word “hurt” in reference to Smith. The first occasion relied on by the majority occurred when *434appellant kissed Smith while fondling her breasts.
Q. What did he say when he kissed you?
A. To kiss him back, and that he better like it or he was going to hurt me.
The second occasion occurred when appellant told Smith to fellate him.
Q. When he put his penis in your mouth and told you to do that, what, if anything, did he say after that?
A. That if I didn’t do it, that he was going to hurt me.
While a threat to hurt Smith clearly satisfies the element of threatening to use force or violence, which is a necessary element to make the penetration nonconsensual under section 22.011(b)(2) and thereby turn the sexual intercourse into sexual assault, it does not constitute a threat of death or serious bodily injury. Tex.Pen.ai Code Ann. § 22.011(b)(2) (Vernon 1994). 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. TexJPenal Code Ann. § 1.07(a)(46) (Vernon 1994).
There is simply no evidence of any threat that rises to the level of a threat of death or serious bodily injury. A victim’s imagination may not supply this missing element of aggravated sexual assault.
There is no testimony of any verbal threat to cause death or serious bodily injury. There is no evidence appellant ever struck Smith, knocked her down, kicked her, or did anything not consistent with sexual assault by force.
In order to sustain the conviction, this court must find evidence in the record upon which a rational trier of fact could determine beyond a reasonable doubt that appellant, by acts or words, occurring in the presence of Mary Smith, intentionally or knowingly threatened to cause the death of or serious bodily injury to Mary Smith. The evidence is not sufficient if it merely shows she was placed in fear of death or serious bodily injury or that a threat was communicated inadvertently.
While the majority correctly reforms the judgment to reflect a single count rather than three distinct counts, and while the evidence is clearly sufficient to sustain a conviction for sexual assault of Mary Smith, I cannot agree that the evidence is sufficient to sustain a conviction for aggravated sexual assault as alleged in the indictment and as submitted to the jury.
For these reasons, and upon these limited bases, I respectfully dissent to the majority’s affirming appellant’s conviction of aggravated sexual assault and would reverse and order appellant’s acquittal of aggravated sexual assault.
. Act of May 25, 1981, 67th Leg., R.S., ch. 202, § 1, 1981 Tex.Gen.Laws 471, 471, repealed by Act of May 27, 1983, 68th Leg., R.S., ch. 977, § 12, *4331983 Tex.Gen.Laws 5311, 5321 (recodified at Tex.Penal Code Ann. § 22.021 (Vernon 1994)).
. It is not necessary to discuss the sufficiency of the evidence to support a conviction under Tex.Penal Code Ann. § 22.021(a)(2)(A)(ii) (Vernon 1994) since subsections (ii) and (iii) were pled and charged conjunctively.