Banks v. State
| Decision Date | 19 September 1979 |
| Docket Number | No. 57920,No. 1,57920,1 |
| Parties | Robert BANKS, Jr., Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Charlie C. Williams, Houston, for appellant.
Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and CLINTON, JJ.
This is an appeal from a conviction for aggravated rape in which the trial court assessed punishment at fifty years confinement in the Texas Department of Corrections, notwithstanding consideration of appellant's sworn motion for probation.
At the outset, we are confronted with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.
Omitting the formal parts, the indictment charged that the appellant did:
". . . Intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to Cjjjjjj Ljjjjjj Bjjjjjj, a female not his wife and hereafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of the Complainant." 1
In applying the law to the facts in the jury instructions, however, the court charged:
"Now, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of January, 1977, in Harris County, Texas, the defendant, ROBERT BANKS, JR., did then and there Unlawfully and without the consent of Cjjjjjj Ljjjjjj Bjjjjjj, a female, have sexual intercourse with the said Cjjjjjj Ljjjjjj Bjjjjjj, and that the said Cjjjjjj Ljjjjjj Bjjjjjj, was not then and there the wife of the said defendant, and that the defendant used force on Cjjjjjj Ljjjjjj Bjjjjjj on the occasion in question and that it was such force as to overcome such earnest resistance as might reasonably be expected under the circumstances at the time, and that the defendant used threats to Cjjjjjj Ljjjjjj Bjjjjjj, and that they were such threats as would prevent resistance by a woman of ordinary resolution, and that the defendant, compelled submission to the rape by threat of death or serious bodily injury to be imminently inflicted on her, then you will find the defendant guilty as charged in the indictment."
Appellant was charged with aggravated rape under § 21.03(a)(2), V.T.C.A. Penal Code which provides:
(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he:
(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
Though the statutory language of § 21.03, supra, does not prescribe a culpable mental state, it is clear that a culpable mental state Is required given the thrust of V.T.C.A., Penal Code § 6.02(b) and (c) which provides:
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required Unless the definition plainly dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
It therefore follows that a culpable...
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