Capps v. Collins
| Decision Date | 04 May 1990 |
| Docket Number | No. 89-1930,89-1930 |
| Citation | 900 F.2d 58 |
| Parties | 30 Fed. R. Evid. Serv. 338 Thomas Lee CAPPS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ken J. McLean, Houston, Tex., for petitioner-appellant.
Victoria Benitez, Austin, Tex., Jim Mattox, Atty. Gen., El Paso, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
Thomas Lee Capps appeals the denial of his 28 U.S.C. Sec. 2254 habeas corpus petition, claiming insufficiency of the evidence, denial of his right to confrontation, and ineffective assistance of counsel. Finding no merit to Capps' assignments of error, we affirm.
Capps was convicted by a Texas state jury of aggravated rape and sentenced to 75 years imprisonment. At trial the complaining witness testified to the following scenario. She had been introduced to Capps six months earlier and had seen him only briefly on that one occasion. Around 9:30 p.m. on August 19, 1983 Capps unexpectedly came to her trailer home and said he had a message from the friends who had introduced them six months before. That was a ruse; Capps did not have a message but wanted her to go have a drink with him. She declined and he left. Shortly thereafter she retired for the night. Around 1:30 a.m. she was awakened by someone banging on the door. She looked outside and saw a shadowy figure in her yard. Frightened, she called the Sheriff's Department and reported an intruder. She was holding for the dispatcher when Capps broke open the locked exterior door and came into her bedroom and demanded that she hang up the telephone. Capps threatened to kill her if she was talking to the police. Capps hit her in the face chipping a tooth and, grabbing her by the hair, half-dragged half-pulled her to her vehicle. He drove to a nearby house where he forced her into the bedroom, made her disrobe and, reaching for what he said was a gun, demanded that she fondle him. He then compelled her to engage in sexual intercourse and in oral sex. During the episode Capps repeatedly threatened her. Afterwards he again threatened her life if she told what he had done and then reached beside the bed and retrieved a pistol which he brandished.
The court of appeal affirmed the conviction, Capps v. State, 696 S.W.2d 486 (Tex.App.1985), and the Texas Court of Criminal Appeals refused discretionary review. Capps unsuccessfully sought state collateral relief and then filed the instant federal habeas petition. The district court rejected the petition; Capps timely appealed.
Capps maintains that there was insufficient evidence to sustain his conviction for aggravated rape, arguing the applicability of a heavier burden of proof required before the 1981 amendment to the Texas aggravated rape statute. Capps committed the rape on August 20, 1983. On that date Texas' aggravated rape statute provided that simple rape became aggravated rape if the defendant,
by acts, words, or deeds occurring in the presence of the victim threatens to cause death, serious bodily injury, or kidnapping to be inflicted on anyone....
Texas Penal Code Ann. Sec. 21.03(a)(3) (Vernon). 1 1] The indictment tracked the language of the statute as it read prior to its amendment in 1981, charging that Capps "did compel submission to the rape by threatening the imminent infliction of serious bodily injury and death." 2 In Rucker v. State, 599 S.W.2d 581 (Tex.Crim.App.1979), the Texas Court of Criminal Appeals construed the pre-amendment language to require proof of an express verbal threat, use of a deadly weapon or actual infliction of serious bodily injury prior to the rape. Capps contends that the state was required to make this same proof because the indictment used the language of the prior statute. We are not persuaded.
The 1981 amendment was intended to overturn the Rucker court's holding of the conduct required for a conviction of aggravated rape. Richardson v. State, 753 S.W.2d 759, 764 (Tex.App.1988) (); Dodson v. State, 699 S.W.2d 251 (Tex.App.1985). Since the 1981 amendment, proof of an express verbal threat, use of a dangerous weapon, or actual infliction of serious bodily harm no longer is legally essential to a conviction for a violation of then-section 21.03(a)(3), now section 22.021(a)(2)(A)(iii). In lieu thereof the Texas Legislature mandated that threat of serious bodily harm or death could be proven by any act, word, or deed which communicated the threat to the victim. Richardson. Albeit careless and inartful, the use of obsolete phraseology to frame the instant indictment does not revive the legislatively rejected interpretation of "threat of serious bodily injury or death" which has been expressly supplanted by statute. Nor does such semantic slippage impose on the state the burden of proving charged facts which are not legally essential to proof of the offense. United States v. Potts, 540 F.2d 1278 (5th Cir.1976); Wray v. State, 711 S.W.2d 631 (Tex.Crim.App.1986) (en banc). The state was obliged to prove only those facts charged in the indictment which were essential elements of the offense of aggravated rape as of August 20, 1983.
Viewing the evidence in the light most favorable to the prosecution, it is manifest that the jury could have found proven, beyond a reasonable doubt, the essential elements of aggravated rape as that crime was defined on the date of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The complainant's testimony that Capps broke into her house late at night, struck her in the face chipping a tooth, forcibly abducted her from her home and, just prior to the sexual acts, reached for what he said was a gun are actions which a rational trier of fact could have found posed the threat of death or serious bodily injury. We are persuaded that the evidence was sufficient to support the conviction.
Capps challenges the exclusion of testimony concerning the complainant's prior sexual activities, maintaining that his right to confrontation was abridged. Capps proffered testimony that the complainant had engaged in group sex sessions as evidence of her consent to his advances. Capps was not involved in any of those alleged encounters. Evidence of the victim's prior sexual activities with persons other than the defendant is not relevant to the question of her consent to sex with the defendant at the time of the charged rape, where, as here, the alleged prior activities are under circumstances radically different...
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