Church v. State

• Decision Date: 08 June 1977
• Docket Number: No. 53235,53235
• Citation: 552 S.W.2d 138
• Parties: Keith Alan CHURCH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 138

552 S.W.2d 138

Keith Alan CHURCH, Appellant, v. The STATE of Texas, Appellee.

No. 53235.

Court of Criminal Appeals of Texas.

June 8, 1977.

Rehearing Denied June 29, 1977.

Will Gray, Houston (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and Stu Stewart, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

Keith Alan Church was indicted for aggravated rape. He was convicted for attempted aggravated rape. Punishment was assessed by the jury at twenty years. He appeals.

He challenges the sufficiency of the evidence to show that the attempted rape was aggravated. He admits that the evidence would have been sufficient to support a conviction for attempted rape but contends that there was no evidence that he attempted to compel "submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone", under V.T.C.A., Penal Code, Section 21.03(a)(2).

The record reflects that M.D., the prosecutrix, lived in a Houston apartment complex with her two children. John Young, an employee of the complex, lived in an apartment nearby with his wife and mother-in-law, Mrs. Erva Harris.

On the evening of November 10, 1974, M.D. left her children with Mrs. Harris and went to a birthday party. When she returned two hours later she parked her automobile near her patio gate. At this time appellant drove up at a high rate of speed and struck another vehicle as he attempted to park.

Before M.D. reached the gate appellant grabbed her from behind. He put his arm around her neck and held an object against her throat. He told her to remain quiet and to come with him to his car. She said she would not go with him and asked him what he wanted. He replied that he wanted to have sex with her. She grabbed the gate but did not scream because she was afraid. He pulled her from the gate and got her between two cars.

M.D. testified that the following occurred after she was on the ground:

"A. Well, we went down on the ground and I was with my head in the gutter and he got on top of me and pulled everything down.

"Q. What did he do with your garments from your waist down?

"A. He pulled them down, I would say midway from my legs to my ankles.

"Q. At that time had you realized or did you know what he had in his hand?

"A. By that time I had a glance at it and I saw it was a knife.

"A. I saw him put it down.

"Q. Okay. How did he get your pants off?

"A. He ripped them.

"Q. What did he do about his clothing?

"A. He started taking off his clothes, undid his belt and, you know, slipped his pants pulled them down."

Appellant was on top of M.D. having intercourse for approximately five minutes but was prevented from completing the act by the arrival of John Young and Erva Harris at the scene. Young knocked him off of M.D. Appellant then escaped on foot but left his automobile at the scene.

After the police determined that appellant owned the automobile and arrested him later, M.D., Young and Harris all identified him as the attacker. The knife was found at the scene.

The record also reflects that M.D. suffered a superficial laceration around the neck area, several smaller scratches on one of her wrists, and a bruise over her lower spine. Since there was no serious injury, the State was required to prove that appellant attempted to compel the prosecutrix to submit to rape "by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone." Section 21.03(a)(2), supra.

There was no evidence of a direct threat to kill or injure M.D. But the jury was authorized to conclude that appellant threatened M.D. with death or serious bodily injury by holding the knife to her throat when he grabbed her. A threat can be communicated by action or conduct as well as verbally. Blount v. State, 542 S.W.2d 164 (Tex.Cr.App.1976); Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965). And in Twomey v. State, 520 S.W.2d 784, 786 (Tex.Cr.App.1975), we quoted with approval from DeVonish v. State, 500 S.W.2d 800, 802 (Tex.Cr.App.1973), and 4 Branch's Ann.P.C.2d, Section 1956, page 281, as follows:

"When both force and threats are alleged, and there is evidence of each it is not necessary that either the force or the threats alone measure up to the standard of the statutory definition; the cogency which one contributes to the other may be sufficient to constitute all that is required."

Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to establish the offense of attempted aggravated rape. Cf. Twomey v. State, supra, and Blount v. State, supra. The evidence that the prosecutrix still had a piece of cake from the party in her hand when she was thrown on the ground does not negate the evidence of the threat and force to commit rape.

The present case is different from Blount, supra, relied upon by appellant, because the evidence in that case did not show that the knife was exhibited before the intercourse.

Appellant next contends that the indictment is fundamentally defective because it fails to charge the offense of aggravated rape as set forth in Section 21.03(a)(2), supra.

The indictment alleges, in pertinent part, that appellant "did then and there unlawfully, intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to M______ D______, a female not his wife and hereafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of Complainant."

Appellant argues the indictment is fundamentally defective because it fails to allege that appellant compelled the prosecutrix to submit to rape. It does, however, allege that appellant by force and threat of imminent infliction of serious bodily injury and death had sexual intercourse with the prosecutrix without her consent. We perceive no material difference between the two allegations. A reasonable reading of the entire indictment is that the prosecutrix was compelled to submit to appellant's act by force and threats. See Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977), and Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977).

Article 21.17, V.A.C.C.P., provides:

"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."

Appellant next contends that the court's charge is fundamentally erroneous. No objection was made to the charge. His complaint, as we understand it, is that paragraph ten of the charge impermissibly combined the element of force, as set out in V.T.C.A., Penal Code, Section 21.03(a)(1), with the element of threats, as set out in Section 21.03(a)(2), supra. The charge reads, in material part, as follows "In this case, you must find from the evidence beyond a reasonable doubt that the defendant attempted to have sexual intercourse with M______ D______ by force and by threatening the imminent infliction of serious bodily injury or death to M______ D______, and before you would be warranted in finding the defendant guilty of attempted aggravated rape, you must be satisfied from the evidence beyond a reasonable doubt that the attempted sexual intercourse if any, by the defendant, was attempted by the use of force and by threatening the imminent infliction of serious bodily injury or death to M______ D______ and a lack of consent on the part of M______ D______.

"Now if you find from the evidence beyond a reasonable doubt, that on or about the 10th...