Fancher v. State, 68573

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MILLER
• Citation: Fancher v. State, 659 S.W.2d 836 (Tex. Crim. App. 1983)
• Decision Date: 16 November 1983
• Docket Number: No. 68573,68573
• Parties: Johnny FANCHER, Appellant, v. The STATE of Texas, Appellee.

Page 836

659 S.W.2d 836

Johnny FANCHER, Appellant, v. The STATE of Texas, Appellee.

No. 68573.

Court of Criminal Appeals of Texas En Banc.

Nov. 16, 1983.

John Mann, Amarillo, for appellant.

Danny E. Hill, Dist. Atty. and Ken Johnson, Asst. Dist. Atty., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal from a conviction of aggravated rape of a child. In a trial before a jury, appellant was found guilty and punishment was assessed at 40 years in prison and a $10,000 fine.

Appellant complains on appeal that there is insufficient evidence to support his conviction inasmuch as there is no evidence that the child sustained serious bodily injury; the trial court committed fundamental error in its charge to the jury; and the court committed reversible error in allowing the introduction into evidence of appellant's clothing found as the result of an illegal seizure and in allowing a chemist to testify as to findings made as the result of a blood analysis performed on appellant's clothing. Appellant further contends that the trial court erred in admitting appellant's confession into evidence and, finally, that the trial court denied appellant the right to place testimony before the jury which would have had a bearing on appellant's eligibility for probation and on mitigation of punishment. We find the appellant's contentions to be without merit and accordingly affirm his conviction.

The record reflects that at approximately 8:15 p.m. on September 3, 1980, the complainant, an 8-year-old female, was lured outside a bowling alley in Amarillo by the appellant on the pretext of finding a hiding place for the appellant. The complainant testified that, upon reaching an area behind some bushes located in the back of the bowling alley, the appellant started to choke the complainant and threatened to kill her if she told anyone about the incident. The complainant testified she then lost consciousness. The complainant's father testified he found the complainant covered in blood walking around from behind the building. Her father took her to the hospital where she underwent extensive surgery for repair of vaginal lacerations which she received as a result of the rape. In addition, doctors found the complainant had received a deep laceration above her left eye and a skull fracture.

Appellant's claim that there was insufficient evidence to support the jury verdict that the child sustained serious bodily injury as the result of appellant's hitting her in the head with a rock, as alleged in the indictment, is without merit. "Serious bodily injury" means bodily injury "that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." V.T.C.A., Penal Code, § 1.07(a)(34). In the instant case the evidence reveals that the victim received a five-inch skull fracture as the result of the blow she sustained and a deep laceration above her left eye which required stitches. In addition, a CATSCAN was performed to determine if there was any internal bleeding; Dr. Clyde Williams, an emergency room physician, described her condition as "serious"; and she was hospitalized and kept under observation for nine days because of her head injury and the extensive vaginal surgery which was required as a result of the rape. At the time of trial, 90 days after the incident, the victim still had pink scar tissue over her left eye. The victim's physician, Dr. Louis Finney, testified that he could not make a long term disfiguration prediction at that time. In Brown v. State, 605 S.W.2d 572, 575 (Tex.Cr.App.1980), we held that the victim's broken nose was a serious bodily injury because "the relevant issue was the disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment." (emphasis added) See Boney v. State, 572 S.W.2d 529 (Tex.Cr.App.1978) (evidence showing that such a wound, if unattended, could cause substantial risk of death was sufficient even though the wound was in fact repaired). In light of Brown, supra, and Boney, supra, we find the evidence is sufficient to support the jury's finding that the child sustained "serious bodily injury."

Appellant also complains the trial court committed fundamental error in charging the jury on a theory not alleged in the indictment and by such charge authorized the jury to convict the appellant on facts supporting a conviction for aggravated rape or facts supporting a conviction for aggravated rape of a child. We find appellant's contention to be without merit.

Appellant was indicted under § 21.03(a)(1) of the Penal Code. The indictment under which appellant was prosecuted alleged in part that appellant,

"... did then and there knowingly and intentionally have sexual intercourse with H___ S___, a female under the age of 14 years and not then the wife of said defendant, and did then and there knowingly and intentionally inflict serious bodily injury on H___ S___ by hitting her on and about the head with a rock...."

V.T.C.A. Penal Code, § 21.03, Aggravated Rape, provides that:

"(a) A person commits an offense if he commits ... rape of a child as defined in § 21.09 of this code and he:

(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; ..."

V.T.C.A., Penal Code, § 21.09, Rape of a Child, provides that:

"(a) A person commits an offense an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years."

The complained of portion of the jury charge reads as follows:

"Now, if you find ... that the Defendant ... did then and there knowingly or intentionally and without the consent and against the will of H___ S___, a female, have sexual intercourse with the said H___ S___, and that the said H___ S___ was not then and there the wife of the defendant, and was under the age of 14 years, and did then and there use force on H___ S___ on the occasion in question to accomplish the sexual intercourse and that the defendant, JOHNNY FANCHER, in the course of the same criminal episode as the alleged rape caused serious bodily injury to H___ S___ by then and there intentionally and knowingly hitting the said H___ S___ on or about the head with a rock, then you will find the defendant guilty as charged in the indictment...." (emphasis added)

While we note that lack of consent is not an element of the offense of aggravated rape of a child, its inclusion in the court's charge merely increased the burden of factual proof on the State. Brooks v. State, 580 S.W.2d 825, 834 (Tex.Cr.App.1979); Wilhoit v. State, 638 S.W.2d 489 (Tex.Cr.App.1982). Since giving the charge was not calculated to injure appellant's rights or otherwise deny him a fair trial, the error, if any, does not require a reversal of the conviction. Art. 36.19, V.A.C.C.P., Brooks, supra. Appellant's ground of error is overruled.

Appellant next contends in grounds of error three and four the trial court committed reversible error when it admitted evidence seized during the search of appellant's grandfather's house and in allowing a chemist to testify as to the results of a blood analysis performed on appellant's clothing, fruits of the search. It is well established that a search conducted without a warrant issued on probable cause is per se unreasonable and that the warrant requirement is subject only to a few well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "One of the specifically established exceptions to the requirements of both a...