Ford v. State
| Decision Date | 05 May 1982 |
| Docket Number | No. 62564,No. 3,62564,3 |
| Parties | George Washington FORD, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Jerry W. Corbin, Denver City, for appellant.
E. W. Boedeker, Dist. Atty., Warren J. New, Asst. Dist. Atty., Levelland, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, DALLY and McCORMICK, JJ.
This is an appeal from a conviction for burglary of a habitation. Punishment was assessed at confinement for seventy-five years.
Appellant raises four grounds of error on appeal, arguing that: (1) the evidence is insufficient to prove intent to commit a felony; (2) the indictment is defective for failing to state that the complaining witness is not the wife of appellant; (3) the indictment is defective for failing to state the sex of the victim; and, (4) the evidence is insufficient to prove that the complaining witness was not the wife of appellant.
The indictment charged appellant with commission of burglary of a habitation under V.T.C.A., Penal Code Sec. 30.02 which provides, in pertinent part, that a person commits that offense if, without the effective consent of the owner, he enters a habitation with intent to commit a felony. V.T.C.A., Penal Code Sec. 30.02(a)(1). See Prescott v. State, 610 S.W.2d 760 (Tex.Cr.App.). In the instant case the indictment alleged an intent to commit rape. Appellant's arguments demonstrate the misconception that it is necessary to allege and prove the underlying felony, rape, instead of simply the intent to commit that felony.
It is first contended that the evidence is insufficient to prove an intent to commit rape because there is no reference in the testimony of the complaining witness to rape, sexual contact or sexual intercourse as those terms are defined in the Penal Code. See V.T.C.A., Penal Code Sec. 21.02, 21.01(1) and 21.01(2). Appellant argues that "the record is void as to numerous elements of the alleged rape or attempted rape of F G." Although that may be an accurate proposition, the insufficiency of proof in that regard is immaterial because the indictment alleges an intent to rape not the commission or attempted commission of rape.
The evidence shows that during the early morning hours of August 23, 1978, the complaining witness, who was visiting her sister, suddenly heard a choking sound from her sister's bedroom. Upon reaching the room, she noticed a man leaving the room through a window. She called the police and went to the porch to turn on a light. When she turned around she saw appellant, completely nude, coming out of her sister's bedroom. After knocking her sister to the floor, appellant went after the complaining witness. He pushed her onto the divan and threw himself on top of her.
The evidence is sufficient to prove the allegation in the indictment that appellant entered the habitation with intent to rape the complaining witness. See Prescott v. State, supra; Morrow v. State, 396 S.W.2d 386 (Tex.Cr.App.).
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