Brem v. State

• Decision Date: 27 September 1978
• Docket Number: No. 55467,No. 1,55467,1
• Citation: 571 S.W.2d 314
• Court: Texas Court of Criminal Appeals
• Parties: Hugh Winfield BREM, Appellant, v. The STATE of Texas, Appellee

Page 314

571 S.W.2d 314

Hugh Winfield BREM, Appellant, v. The STATE of Texas, Appellee.

No. 55467.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 27, 1978.

Tom Mills, Jr., Dallas, for appellant.

Henry M. Wade, Dist. Atty., Gary Love, Bob Hinton and Tom Lillard, Asst. Dist. Attys., Dallas, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape. After a trial before a jury, the court assessed appellant's punishment at forty-five years confinement in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is not challenged. The record reflects that on May 13, 1976, a little before 2:00 a. m., the prosecutrix was sleeping on a couch in the living room of her apartment. She woke up to see a man standing next to the couch, wearing only a white Tee-shirt and a stocking over his face, smelling strongly of cologne. The prosecutrix testified that the man, whom she identified as appellant, held a knife to her throat and had sexual intercourse with her without her consent. She testified that after she thought he was gone she called the police and officers arrived at her apartment shortly thereafter. She also testified that some nine hours after the rape she identified appellant in a lineup as her assailant.

Police Officer Edwin Lowe testified that he received a report of a rape at about 2:05 a. m. on May 13th. He stated that he immediately drove to appellant's house, where he saw that appellant's car was gone. He testified that a few minutes later appellant arrived home in his car. Lowe stated that he detained appellant for five to ten minutes, waiting for other officers to arrive. Lowe testified that at that time appellant was wearing a white Tee-shirt and blue jeans which were partially unbuttoned. He also stated that appellant was wearing no underwear and that he had a strong odor of cologne. A pat-down frisk revealed that appellant was carrying a knife, which the prosecutrix identified as similar to the one used in the rape.

Officer Reese Bullard testified that when he received a call about the rape he went to the prosecutrix's apartment, where he smelled the odor of cologne. He left shortly and went to appellant's house. When he arrived and saw appellant, he smelled the same odor of cologne as he had smelled in the apartment.

The record reflects that appellant was subsequently arrested ¹ and taken to jail, where he later signed a consent form for a search of his car. A subsequent search of his car revealed a bottle of cologne, which was introduced into evidence.

Dr. Rigoberto Santos, a medical doctor at Parkland hospital, testified that he examined the prosecutrix in the early morning of May 13th and found sperm in her vagina.

Appellant did not testify in his own behalf.

In his first ground of error, appellant contends that the trial court erred in overruling his motion to quash the indictment. The indictment, in pertinent part, alleged that appellant did:

"intentionally and knowingly have sexual intercourse with M B W , hereinafter called Complainant, a female not his wife, without the consent of the Complainant, by means of force and threats, and the Defendant did intentionally and knowingly compel the Complainant to submit to the said act of sexual intercourse by threatening serious bodily injury to be imminently inflicted on the Complainant."

Appellant now contends that the trial court should have quashed the indictment because (1) it failed to allege the manner and means of force and threats used by appellant; (2) it failed to allege the circumstances which made the act of sexual intercourse non-consensual; and (3) it failed to allege to whom the force and threats were directed. Appellant's contentions are without merit.

Contrary to appellant's assertion, an indictment for aggravated rape need not set out or describe the specific actions or deeds of the defendant which communicated the threat of serious bodily injury to the prosecutrix. See Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977); Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977). The indictment sufficiently alleged the act committed by appellant which "aggravated" the rape under Sec. 21.03(a)(2), and therefore was not subject to a motion to quash on this ground.

Appellant's contention that the indictment should have been quashed because it failed to allege the circumstances which made the act of intercourse non-consensual is likewise without merit. The indictment alleged that appellant had sexual intercourse with the complainant "without the consent of the Complainant, by means of force and threats." It is not necessary that the indictment allege the facts and circumstances of the offense which made the act of sexual intercourse non-consensual. The allegations of "force" and "threats" were sufficient to place appellant on notice of the kind of lack of consent upon which the State would base its case. V.T.C.A., Penal Code, Sec. 21.02(b)(1), (2). See Watson v. State, supra; Childs v. State, supra; cf. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977). This being true, no further factual allegations were necessary and the indictment was not subject to a motion to quash on this ground.

Appellant also contends that the indictment is defective in that it fails to allege to whom the force and threats were directed. Appellant raises this ground for the first time on appeal since it is not contained in his motion to quash; therefore, only jurisdictional defects will be considered. Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). A jurisdictional defect in an indictment is a defect which renders the indictment insufficient in that it fails to allege the constituent elements of the offense. Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975).

Therefore, this Court must ascertain whether this indictment, when read as a whole, sufficiently charges the offense of aggravated rape. Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977); Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975). We hold that the absence of the name of the person to whom the threats were directed does not render the indictment fundamentally defective. The name of the person to whom the threats under V.T.C.A., Penal Code, Sec. 21.02(b)(2) were directed is not a necessary element in the indictment. See Childs v. State, supra. Appellant's first ground of error is overruled.

In his second and third grounds of error, appellant contends that the fruits of an illegal detention should have been suppressed. The record reflects that Officer Lowe arrived at appellant's house shortly after receiving a radio report of the rape. Appellant arrived home a few minutes later, and was detained by Officer Lowe for five to ten minutes, until another officer arrived and placed him under arrest. During this brief detention of appellant, Officer Lowe observed appellant and testified as to this description at trial. Lowe also conducted a "pat-down" frisk, which revealed a pocket knife in appellant's pants. Appellant contends that none of this evidence was admissible as it was obtained as a result of an illegal detention. We disagree.

Out of the presence of the jury, Officer Lowe testified as to the basis for his detention. He testified that during May of 1976 he had been involved in the investigation of other rapes in town; as a result of investigation, he had discovered the name of a suspect in the rapes; appellant was that suspect; there had been other investigations which had placed appellant at the scenes of other rapes within fifteen minutes of the rapes; there had been other investigations which had lead officers to appellant as a suspect. As a result, when he received the radio call about the rape on May 13th Officer Lowe drove to appellant's house and waited. Appellant arrived a few minutes later, and Lowe recognized the car. He testified that appellant fit the physical description of the assailant which was broadcast on the radio. He approached appellant and observed that appellant's jeans were buttoned only at the top and the bottom, and that he was wearing no underwear. As a result of all of the information of which Lowe was aware at that time, he detained appellant for five to ten minutes, until another officer arrived and made the arrest.

Circumstances which do not constitute probable cause for arrest may justify temporary detention for the purposes of an investigation, since an investigation is considered to be a lesser intrusion on the personal security. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Adams v. State, 552 S.W.2d 812 (Tex.Cr.App.1977); Milton v. State, 549 S.W.2d 190 (Tex.Cr.App.1977); Perez v. State, 548 S.W.2d 47 (Tex.Cr.App.1977); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

The detention is justified if the law enforcement officer has specific, articulable facts, which in light of his experience and general knowledge, together with rational inference from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, supra; Adams v. State, supra; Milton v. State, supra; Ablon v. State, supra. Further, reasonable cause for an investigative stop can be based on information supplied by other persons. Adams v. Williams, supra; Milton v. State, supra.

In the instant case, Officer Lowe had been involved in the investigation of recent rapes in the area; due to his investigation and that of other police officers, he knew that appellant was a prime suspect in the rapes; he knew that appellant had been at the scenes of other rapes; he knew that a rape had just been committed and that appellant's physical description matched that of the assailant. Officer Lowe...