Dodson v. State

• Decision Date: 19 September 1985
• Docket Number: No. 12-84-0078-CR,12-84-0078-CR
• Citation: 699 S.W.2d 251
• Parties: David Anthony DODSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 251

699 S.W.2d 251

David Anthony DODSON, Appellant, v. The STATE of Texas, Appellee.

No. 12-84-0078-CR

Court of Appeals of Texas,

Tyler.

Sept. 19, 1985.

Jay Ethington, Dallas, for appellant.

H. Ownby, Dist. Atty., McKinney, for appellee.

COLLEY, Justice.

Dodson was convicted by a jury of aggravated rape. The jury assessed his punishment at seventy-five years' confinement. The jury found two enhancement counts alleged in the indictment true.

According to the testimony of A____ S____ (hereafter complainant), Dodson came into her bedroom at or about 1:30 a.m. on May 20, 1983, while she was sleeping. She was awakened by something brushing across her lips. She looked up and observed Dodson nude and standing beside her bed. Dodson then climbed on top of complainant, pinned her arms with his knees, and attempted repeatedly to insert his penis into her mouth. She resisted the assault, screaming for him to leave and attempted to gouge his face and eyes with her fingernails. Dodson continued his assaultive conduct and the complainant continued to struggle to escape him. Failing to force complainant to receive his penis orally, Dodson then pinned complainant on her back in the bed and attempted to penetrate complainant's vagina. Complainant resisted, clawing at Dodson and "pinching" his penis. Dodson then grabbed complainant's neck and choked her with sufficient force to make it difficult for her to breathe. Dodson told complainant, in effect, that he would not leave until he was successful in his efforts, and that if she didn't stop screaming and struggling, he would tie her up with a rope that he had brought. Complainant, who testified that she was in fear of serious injury or death by strangulation at the hands of Dodson, then submitted. Complainant testified that Dodson was extremely strong.

Kenneth Kippels, a medical doctor, testified for the State that his examination of complainant revealed bruises on each side of her neck and that the bruises resulted from prolonged and significant force. Dr. Kippels also testified that such force was sufficient to cause breathing difficulties for the complainant.

Dodson presents five grounds of error. He claims that (1) the evidence is insufficient to sustain the conviction; (2) the court erred in refusing to charge the jury on the lesser offense of rape; (3) the court committed error in receiving into evidence a taped conversation between one of complainant's three daughters and a police communications officer; (4) the court erred in admitting into evidence at the punishment phase Dodson's prior conviction of burglary; and (5) the trial court erred at the punishment phase by submitting a supplemental charge defining "aggravated perjury" of which Dodson had also been previously convicted. We affirm.

Dodson argues under his first ground that the evidence is insufficient to support his conviction for aggravated rape. He contends, basically, that since no express verbal threat was made, and no gun, knife or deadly weapon was used in the commission of the offense, and no serious bodily injury was in fact inflicted on the complainant herein, the conviction for aggravated rape cannot stand. Dodson relies principally upon Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), and Rucker v. State, 599 S.W.2d 581 (Tex.Cr.App.1979). He also cites Holder v. State, 643 S.W.2d 718 (Tex.Cr.App.1982), and Whitchurch v. State, 650 S.W.2d 422 (Tex.Cr.App.1983). We note that in each of the such cases other than Holder, the Court was construing the language of Tex. Penal Code Ann. § 21.03 (Vernon 1974) as it existed before the effective date of the 1981 amendments ¹ thereto. Prior to the 1981 amendments, Section 21.03(a)(2) ² provided that an actor committed aggravated rape when he committed rape and compelled "submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone." The Court of Criminal Appeals in Rogers and Rucker construing such statute held that "absent an express verbal threat, evidence was sufficient to prove aggravated rape only when a gun, knife, or deadly weapon was used, or serious bodily injury was in fact inflicted." Rucker at 586. If that holding is applicable to the language of Section 21.03(a)(2) as enacted by the 67th Legislature effective September 1, 1981, we will be constrained to agree with Dodson and reverse his conviction. Replying to Dodson's argument, the State contends that the decisions of the Court of Criminal Appeals in Rucker and Rogers are inapplicable to the language of the 1981 amendments, citing Seek v. State, 646 S.W.2d 557, 560 (Tex.App.--Houston [1st Dist.] 1982, no pet.). We agree. The 1981 amendments to Section 21.03(a)(2) provide that when an actor commits rape, he is guilty of aggravated rape if he "by acts, words, or deeds places the victim in fear of death, serious bodily injury ... to be imminently inflicted on anyone...." The exposition by the Court of Criminal Appeals of former Section 21.03(a)(2) cannot rationally be applied to the dissimilar language of the 1981 version of Section 21.03(a)(2). Under the rationale of Rucker and Rogers, if no express verbal threat to kill or seriously injure the victim is made by the actor, and no serious bodily injury is actually inflicted on the victim, then the actor in communicating the threat to immediately inflict serious bodily injury, as that term is defined in Tex.Penal Code Ann. § 1.07(a)(34) (Vernon 1974), must necessarily use means capable of inflicting serious bodily injury, i.e., gun, knife, or deadly weapon. That standard of proof represents an heroic effort by our Court of Criminal Appeals to draw a fine distinction between the proof required to establish the commission of the offenses of rape and aggravated rape. The legislature dealt a fatal blow to the Rucker-Rogers exposition by its enactment of the 1981 amendments to Section 21.03(a)(2). Our study of a trio of Courts of Appeal cases, viz. Seek v. State, 646 S.W.2d 557, 560 (Tex.App.--Houston [1st Dist.] 1982, no pet.); Bank v. State, 662 S.W.2d 627, 629 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd); and Harris v. State, 666 S.W.2d 537, 539 (Tex.App.--Austin 1984, no pet.), persuades us that in deciding evidentiary attacks in aggravated rape cases, we should review the evidence overall and determine whether the "acts, words or deeds" of the actor were sufficient to place a reasonable person in complainant's circumstances in fear of death or serious bodily injury to be imminently inflicted upon her or another at the hands of her attacker. We conclude that the "acts, words and deeds" of Dodson during the commission of this rape were indeed sufficient to place a reasonable person in complainant's circumstances in fear of the imminent infliction of serious bodily injury upon her, and, therefore, the evidence is sufficient to support the verdict. Ground of error number one is overruled.

Next, Dodson claims that the trial court erred in refusing his request that the jury be charged on the lesser included offense of rape. Tex.Crim.Proc.Code Ann. art. 37.09 (Vernon 1981) provides in part:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person ... suffices to establish its commission.

Hence, we conclude that rape is a lesser included offense of aggravated rape. See also Choice v. State, 628 S.W.2d 475, 477 (Tex.App.--Texarkana 1982, no pet.). However, an instruction on a lesser included offense is required only when there is evidence from any source, however weak which raises the issue that a defendant if guilty "is guilty only of the lesser offense." McBrayer v. State, 504 S.W.2d 445, 447 (Tex.Cr.App.1974). Furthermore, the Court of Criminal Appeals has consistently held that a charge on a lesser included offense is necessary only where the offense alleged "requires the jury to find a disputed factual element which is not required for conviction in a lesser included offense." McKinney v. State, 615 S.W.2d 223, 224 (Tex.Cr.App.1981) (emphasis added). In this case, Dodson did not testify. The complainant testified that the words and conduct of Dodson caused her to be in fear of serious injury and death. We have carefully considered all ³ of the evidence adduced before the jury, and conclude that no evidence was produced before the jury which conflicts with the complainant's testimony that she submitted to the rape only because she was in fear that Dodson would seriously injure or kill her. Ground number two is therefore overruled.

During the assault made on complainant, her three daughters who lived with her were present in the home. One of the daughters, Christine, age 16, was awakened by her mother's screams. Christine called the Richardson Police Department and reported to Sherrie Holley, a communications supervisor with the Richardson Police Department, that her mother was being sexually assaulted. Christine described to Sherrie...