Broadway v. State, 40496

• Decision Date: 12 July 1967
• Docket Number: No. 40496,40496
• Citation: 418 S.W.2d 679
• Parties: Rodney Gene BROADWAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 679

418 S.W.2d 679

Rodney Gene BROADWAY, Appellant, v.The STATE of Texas, Appellee.

No. 40496.

Court of Criminal Appeals of Texas.

July 12, 1967.

Rehearing Denied Oct. 11, 1967.

John B. McClane, Ardell M. Young, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., Charles D. Butts, R. J. Adcock, and Roger W. Crampton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

The offense is rape; the punishment, life.

The indictment charged that on or about the 13th day of January, 1966, the appellant did ravish and obtain carnal knowledge of the prosecutrix by force and threats and without her consent.

The record reflects that on the date alleged in the indictment (January 13, 1966)appellant, having been born on August 14, 1949, was sixteen years of age.Following his arrest, a complaint was filed against appellant in the Juvenile Court of Tarrant County.Thereafter, the Juvenile Court certified appellant to the Criminal District CourtNo. 2 of Tarrant County for proper criminal proceedings, as provided by Sec. 6 of Art. 2338--1, Vernon's Ann.Civ.St.

On April 19, 1966, the indictment charging appellant with the offense was returned into the Criminal District CourtNo. 2.On April 22, 1966, the cause was transferred to the Criminal District CourtNo. 3 of Tarrant County.

On October 25, 1966, appellant was tried and convicted in said court.Trial was under the alternate procedure provided by Art. 37.07--2 of the 1965 Code.Notice was given by the state that it would not seek the death penalty in view of appellant's age and the provisions of Art. 31, Vernon's Ann.P.C.Upon return of the jury's verdict of guilty, appellant elected to have the same jury assess the punishment.

At the trial on the issue of appellant's guilt or innocence, the prosecutrix, a thirty-seven-year-old housewife, testified that in the early morning hours of January 13, 1966, she took her husband to work.She was dressed in her nightgown and wearing a heavy coat for warmth.As she was driving on the freeway, returning to her home, she noticed a car that appeared to be following her.When she arrived home around 3:45 a.m. and had just gotten out of her car, appellant jumped out of the other car, ran to her, and struck her on the back of the head, stunning her.Appellant then hit her two or three times in the chest, threw her in the back seat of the car he was in and sat down on her.Then, with his first drawn back, appellant said to her repeatedly: 'if you scream I will kill you.'Another man in the car then started the car and drove away.After the car started, appellant pulled the prosecutrix's gown up and performed an oral act of sodomy upon her.The car then stopped and the other man got in the back seat and committed an act of oral sodomy upon her.Appellant then drove the car to a place in the woods and stopped.His male companion then had an act of sexual intercourse with the prosecutrix.Then appellant had an act of sexual intercourse with her.Appellant and his companion then tried to force the prosecutrix to perform an unnatural sex act with them.She refused, and appellant's companion then had another act of sexual intercourse with her just as it was getting daylight.The acts of sexual intercourse were without her consent.

The prosecutrix then told appellant and his companion that she would not call the police if they would take her home.They then took her to within a short distance of her home and let her out of the car.As she got out of the car the prosecutrix told appellant's companion that she was glad he did not hurt her 'any worse than you did,' to which he replied: 'Oh, we don't ever hurt them.'

After arriving home the prosecutrix called her husband, who came home and was told what happened.The police were called and prosecutrix was taken to a hospital, where the doctor's examination showed that she had engaged in a recent act of sexual intercourse.

Appellant did not testify but offered testimony in support of his defense of insanity.Evidence was also presented by the state on the issue.

The jury, in its verdict, found appellant sane at the time of commission of the offense, sane at the time of trial, and guilty of rape by force and threats, as charged in the indictment.

Seven grounds of error are urged by appellant in his brief filed in the trial court.

In his first two grounds of error he insists that the evidence is insufficient to support the conviction and that the punishment is excessive.

It is insisted that the evidence is insufficient to sustain the conviction for rape by force and threats because the prosecutrix did not testify that she actually resisted appellant's acts and that she was placed in fear of death or bodily injury as a result of the threats made by him.It is also insisted that the evidence is insufficient because there was no proof of injury to the prosecutrix.

We have carefully reviewed the record in light of such contention, and find no merit therein.

The prosecutrix testified that she did not consent to the acts of intercourse and that appellant threatened to kill her if she did not submit to his acts.She swore positively that she thought appellant and his companion were going to kill her.In explaining her non-consent, she stated:

'Well, I didn't consent.It was just that I didn't dare try to get out because they would have killed me.I know that * * *.'

In determining the sufficiency of force used, the jury can take into consideration threats made by an accused at the time of commission of the offense.Vanderpool v. State, 155 Tex.Cr.R. 318, 234 S.W.2d 879.

The force used by appellant and his companion, under the circumstances, was such as might be reasonably supposed to overcome resistance by the prosecutrix, as required by Art. 1184, V.A.P.C.

The threats were also, under the facts and circumstances, such as might reasonably create a just fear of death or bodily harm to the prosecutrix, as required by Art. 1185, V.A.P.C.

The punishment fixed by the jury is within the limits prescribed by law for the offense, and it is not within the province of this court to pass upon the propriety thereof.Garcia v. State, 166 Tex.Cr.R 482, 316 S.W.2d 734;Gonzales v. State, Tex.Cr.App., 386 S.W.2d 139.

The grounds of error are overruled.

In his grounds of error Nos. 3 to 7, appellant insists that the court erred in permitting Officers Barron and Glass to testify, at the hearing on the issue of punishment, that his general reputation for being a peaceable and law-abiding citizen was bad--over the...