Baugh v. State, 38719

• Decision Date: 11 May 1966
• Docket Number: No. 38719,38719
• Parties: Willard W. BAUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 768

402 S.W.2d 768

Willard W. BAUGH, Appellant, v. The STATE of Texas, Appellee.

No. 38719.

Court of Criminal Appeals of Texas.

May 11, 1966.

Stone & Stone, by Wm. Emerson Stone, Jr., Jacksonville, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is rape; the punishment, 20 years.

Though lengthy, this record presents very few conflicts as to the facts. Appellant and prosecutrix were married in 1960, when he was 21 and she was 18. Prosecutrix took her son to her mother's house in May of 1964, and in June she filed a divorce suit against appellant. Appellant made several efforts to dissuade her, but, in company with her attorney, who had conferred with appellant's attorney concerning custody, child support and visitation rights, she appeared before the Honorable Jack Pierce, Judge of the 145th Judicial District Court, and a hearing was had on prosecutrix' petition. At the conclusion thereof, Judge Pierce made the following entry on the court's docket: '8--21--64, Came the plaintiff and was sworn and testified; no community property. Court granted plaintiff judgment of divorce with custody of child with support as per decree on file herein. Jack Pierce, Judge Presiding.'

On the evening of the same day, appellant appeared at prosecutrix' mother's home where he brandished a pistol and forcefully caused prosecutrix to accompany him to a deserted country road where he, having placed her in fear, had an act of intercourse with her. According to her testimony, this and the subsequent act which occurred that night in a nearby abandoned house were committed against her will and because she was afraid of being killed if she did not submit.

Prosecutrix was returned to her mother's home sometime after midnight by appellant's brother-in-law, who was able to locate the pair in the abandoned house before the officers who were searching for them could do so.

We quote from appellant's brief: 'The sole question presented on this appeal is whether or not on August 21, 1964, the date of the alleged offense, Willard W. Baugh and the prosecuting witness Ethelda Baugh were husband and wife. If husband and wife, the conviction is void.'

This appeal is predicated upon the contention that what occurred on the day Judge Pierce heard the divorce suit and announced his ruling is not controlling, but rather that the date of the entry of a judgment which was prepared by prosecutrix' lawyer some six days thereafter and signed by Judge Pierce on August 27, should determine the marital status of the...