Jaffrion v. State

• Decision Date: 21 November 1973
• Docket Number: No. 46584,46584
• Citation: Jaffrion v. State, 501 S.W.2d 322 (Tex. Crim. App. 1973)
• Parties: Aubrey Joe JAFFRION, alias, Joe Jafrion, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 322

501 S.W.2d 322

Aubrey Joe JAFFRION, alias, Joe Jafrion, Appellant, v. The STATE of Texas, Appellee.

No. 46584.

Court of Criminal Appeals of Texas.

Nov. 21, 1973.

Paul T. Holt, Austin, for appellant.

Robert O. Smith, Dist. Atty., Larry Laden, Asst. Dist. Atty., Austin, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

REYNOLDS, Commissioner.

Following a jury verdict of guilty of the offense of assault with intent to commit rape and court-assessed punishment of twenty years confinement, the appellant challenges the conviction on four grounds of error presented by appointed appellate counsel and on five grounds of error assigned by appellant in a pro se brief. The alleged errors are without that merit required for reversal.

To place the grounds of error in the proper perspective, an evidential recapitulation is necessary. The evidence was adduced through the State's witnesses; the appellant did not testify and relied on no witnesses other than those called by the State.

The appellant, whose name is shown as Aubrey Lee Jaffrion alias Joe Jofrion in the court papers and who signs his name as Aubrey Lee Joffrion, was the manager of the Cock and Bull Lounge in Travis County. The prosecutrix, a twenty-yearold married woman who had been seeking work to secure rent money prior to commencement of a regular job on February 1, 1972, accepted lounge employment from the appellant, beginning Saturday, January 29. Her Sunday shift ended at 10 p.m., but since the lounge remained open until midnight and she still was in need of rent money, she elected to work the additional two hours, at which time the appellant agreed to pay her the wages she had earned. At midnight, the last two customers left, the appellant locked the door, and counted the money in the cash register. Then the appellant came around the bar with the money and a gun to the door where the prosecutrix was putting on her coat preparatory to leaving. She and the appellant engaged in a conversation. The prosecutrix remarked that she was afraid of guns. The appellant inquired about the rent money and, following the prosecutrix's reply that it had been taken care of and if necessary she could see her parents, the appellant asked if she wanted him to pay her rent. Upon being refused, the appellant kept suggesting that he pay the rent. The prosecutrix stated that she then '. . . finally realized it was a proposition to stay there, and I told him no, that to please let me go, and he argued, argued, and I kept saying no, and I asked him to let me go . . . but . . . all of a sudden he got a grim look on his face, pulled out the gun and told me he was not asking me any more, he was telling me and that I should take off all my clothes.' The prosecutrix backed away, asking appellant to let her go, but he kept approaching her with the gun and demanding that she take off her clothes. The appellant, pointing the gun at the prosecutrix, kept repeating, '. . . all right, come on. I don't want any, I don't want to mess around. Take your clothes off. . . .' She disrobed and, responsive to her crying, the appellant told her if she made any noise, '. . . he was going to blow my head off.'

The appellant fondled her breasts, making remarks to the effect that he had wanted to see whether she was as big busted as he had heard. Appellant then told the prosecutrix to get on the pool table. She did. She was crying and appellant threatened to shoot her if she made a sound. Appellant got on the table with her. He asked if she was worried about getting pregnant; she does not remember her reply; and then '. . . he said something about he was already finished, or something, and then he tried to have intercourse anyway.' She did not know if the appellant actually effected penetration.

The appellant, who had been very calm during these events, got down from the pool table and became very nervous. The prosecutrix asked for and received appellant's permission to go. She got down from the pool table and started toward her clothes. She heard a shot. She does not think appellant was shooting at her. When she picked up her clothes there were holes in the garments that were not there when she took them off.

Upon production of the garments, the defense objected to the exhibits 'unless they are relevant in some way,' and objected to their introduction in evidence and 'to the assertion by the State's attorney that those are bullet holes. . . .' The trial judge, remarking outside the hearing of the jury that it was not stated to the jury that they are bullet holes, overruled the objection and admitted the clothing in evidence.

Respecting this stage of the events, the record reveals the following occurred during the cross-examination of the prosecutrix:

'Q. You got dressed and then you left?

'A. No, sir. There was some conversation. He was mainly doing all the talking. He kept saying that he was going to kill himself. He was sorry. And he said, he kept saying, I kept asking him was he going to let me go, and he said yes, he was going to let me go and I told him, he said, I know you are going to go to the police, and I'm going to kill myself because I can't go back to the penitentiary. He kept saying that over and over. And then he said how lonesome he was and if he went back to the penitentiary, he would die.

'Q. Now, '

At this point, appellant's trial counsel asked for permission to approach the bench, and the record shows that a conference was held at the bench. The record does not show any objection made to, or any request for the court to take any action concerning this testimony. Following the conference, the cross-examination was resumed.

After the prosecutrix dressed, the appellant unlocked the door and she left in her car, the appellant following for some distance in another car. On the way to her home, the prosecutrix saw, but made no outcry to, a policeman for fear that the appellant, whose vehicle was then adjacent to her car, would shoot her. Arriving home, she related the occurrence to her roommate, who called another couple, one of whom called the police.

With the first ground of error, the sufficiency of the evidence to sustain the conviction is challenged, there being stressed the proposition that appellant's statements of 'I don't want any, I don't want to mess around' negative the intent to commit rape. Appellant's statements, when considered in context, as they must be, did not disprove an intent to commit rape, particularly since the declarations were followed by his attempt 'to have intercourse anyway.' The statements were merely a part of the interrelated circumstances bearing on, and presenting a jury issue of, appellant's intent. The fact that there may have been no penetration and rape was not committed is not determinative of intent, because the crime charged is completed when there is an assault with the intent to commit rape notwithstanding the subsequent abandonment of the intention. Kidwell v. State, 126 Tex.Cr.R. 253, 70 S.W.2d 724 (1934). It was reasonable for the jury to conclude from appellant's conduct in the light of the facts and circumstances shown that he made an assault with the present intention to commit the crime of rape, which he was in a position to complete, despite the resistance of the prosecutrix. See Douthit v. State, 482 S.W.2d 155 (Tex.Cr.App.1971); Willis v. State,473 S.W.2d 200 (Tex.Cr.App.1971); Melton v. State, 442 S.W.2d 687 (Tex.Cr.App.1969).

Appellant, by...