Childs v. State

Decision Date09 March 1977
Docket NumberNo. 52549,52549
Citation547 S.W.2d 613
PartiesSammy Lee CHILDS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

ODOM, Judge.

Appellant was convicted for aggravated rape under V.T.C.A., Penal Code Sec. 21.03(a)(2). Punishment was assessed at twenty years.

Appellant in two grounds of error asserts that the indictment is fundamentally defective because it fails to charge the offense of aggravated rape as set forth in Sec. 21.03, supra.

Appellant made no motion to quash the instrument at trial. The indictment, omitting the formal parts, alleges that the appellant:

" . . . did then and there knowingly and intentionally by force and threats have sexual intercourse with A______M J , a female not his wife, and did then and there intentionally and knowingly compel A M J______ to submit to such act of sexual intercourse by threatening the imminent infliction of death."

Section 21.03(a)(2), supra, 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 . . . to be imminently inflicted on anyone."

V.T.C.A., Penal Code Sec. 21.02 defines rape as:

"(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female's consent.

"(b) 1 The intercourse is without the female's consent under one or more of the following circumstances:

"(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;

"(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution; . . ."

Appellant contends that the charging instrument is fatally defective because it fails to allege to whom the threat of imminent infliction of death was directed and because it fails to allege all of the requisite elements of rape as defined by Sec. 21.02, supra. We must ascertain whether the indictment, when read as a whole, sufficiently charges the offense of aggravated rape. 2 Banks v. State, Tex.Cr.App., 530 S.W.2d 940; Clark v. State, Tex.Cr.App., 527 S.W.2d 292.

Appellant correctly observes that the indictment does not directly specify the person threatened with the imminent infliction of death. It does, however, allege that appellant made this threat, and that the injured party was compelled to submit to his act because of this threat.

The charging instrument, at the least, alleges that the injured party submitted to the sexual intercourse because of a threat made by the appellant. The specific threat alleged to have been made by the appellant is outlined by the language of Sec. 21.03, supra. A logical deduction arising from a reasonable reading of the entire indictment is that the prosecutrix submitted to appellant's act because he threatened her with the imminent infliction of death. If the evidence showed that some other person were the object of the threat, it would be a variance between the allegation and the proof. 3

The indictment is not fundamentally defective for failure to allege to whom the threat of imminent infliction of death was directed. An indictment for aggravated rape should make this allegation. But, absent a motion to quash, no error is presented. The first ground of error is overruled.

Appellant also insists that the indictment fails to allege all of the essential elements of rape as set forth in Sec. 21.02, supra. First, appellant maintains that the indictment must specifically allege that the "force" or "threats" used were the type enumerated in Secs. 21.02(b)(1) and (2), supra. This contention was expressly rejected in Watson v. State, Tex.Cr.App., 548 S.W.2d 676 (1977). Presiding Judge Onion, speaking for the Court, stated:

"The only type of 'force' which will support a rape conviction is that which 'overcomes such earnest resistance as might reasonably be expected under the circumstances.' The only type of 'threat' which will support a rape conviction is that which 'would prevent resistance by a woman of ordinary resolution.' "

It is unnecessary to specifically allege the type of force and threats outlined in Sec. 21.02, supra. Appellant's assertion is without merit.

Next, appellant claims that the indictment is defective because it does not allege that the act was committed without the female's consent. Section 21.02, supra.

The indictment does allege, however, that the appellant had sexual intercourse with the victim by force and threats and that he compelled her to submit to this act of sexual intercourse by threatening the imminent infliction of death. The indictment meets the test subscribed to by the majority in Clark v. State, supra.

The lack of consent of the victim is initially indicated by the use of the words "force" and "threats." In Watson v. State, supra, it was also stated:

"The use in the indictment in the instant case of the general terms 'force' and 'threats' to describe why consent to sexual intercourse was lacking embrace the special terms or definitions in the statute giving adequate notice to the appellant of the elements with which he was charged." (Emphasis added.)

The use of the words "force" and "threats" in the indictment in the...

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28 cases
  • Ex parte McWilliams
    • United States
    • Texas Court of Criminal Appeals
    • October 15, 1980
    ...to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone." In Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977), the defendant contended that the indictment failed to allege to whom the threat of death was communicated and was, thus, fundamen......
  • DeVaughn v. State
    • United States
    • Texas Court of Criminal Appeals
    • April 13, 1988
    ...supra at 426. Accord Goss v. State, 580 S.W.2d 587 (Tex.Cr.App.1979); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978); Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977). Thus, this Court has held that, although the State need not allege the elements of the aggravating offense committed or a......
  • Rucker v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 13, 1979
    ...288, 269 S.W. 88 (1925). In construing the new code's requisites for aggravation by threats, this Court stated in Childs v. State, 547 S.W.2d 613, 615, n. 3 (Tex.Cr.App.1977): * * * The object of the threat can be one or more persons, but the (complainant) is always one of the persons to wh......
  • Rubio v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 24, 1980
    ...act by force and threats." Church v. State, supra, at 140. Also see, Watson v. State, Tex.Cr.App., 548 S.W.2d 676; Childs v. State, Tex.Cr.App., 547 S.W.2d 613. Appellant's second ground of error is In his last ground of error, appellant contends that the jury charge is fundamentally defect......
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