Knox v. State

• Decision Date: 06 December 1972
• Docket Number: No. 45432,45432
• Citation: 487 S.W.2d 322
• Parties: Larry Joe KNOX, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 322

487 S.W.2d 322

Larry Joe KNOX, Appellant, v. The STATE of Texas, Appellee.

No. 45432.

Court of Criminal Appeals of Texas.

Dec. 6, 1972.

Jack Hampton, Dallas, for appellant.

Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a rape conviction where the jury assessed the punishment at confinement in the Texas Department of Corrections for 1,001 ¹ years.

At the outset, appellant challenges the sufficiency of the evidence to sustain the conviction. The court submitted the case to the jury on rape by force and rape by threats. A general verdict was returned.

The prosecutrix, a 25-year old divorcee, testified she met the appellant on June 29, 1969 at the swimming pool of the apartment complex where they both resided in the City of Dallas; that she saw him briefly the next day and then went to work at the telephone company from 6 p.m. until 12 midnight and returned to the apartment complex shortly after midnight where she saw the appellant near the pool at which time he told her. 'Be sure and lock your door.'

She related she locked her door and retired about 2 a.m. and later 'work up struggling' to find the appellant in bed with her, choking her and stating, 'Don't yell.' She 'struggled for quite awhile,' and 'was really fighting'; felt her eyes swelling and noticed they were excessively moist; 'wet.' In the struggle, she fell from the bed and was able to persuade her assailant to let her go to the bathroom where she found a gash or cut over her left eyebrow, cuts behind her ears and head, and on her wrist, blood in her hair, and that her eyes were almost swollen shut. At this time, she observed that the appellant had a razor blade clenched between his teeth and that he smelled of alcoholic beverages. At her request, he put the razor blade down but refused to allow her to call an ambulance and ripped off her nightie and ordered her back to bed. Appellant then removed her panties, pulled her legs apart and proceeded to have sexual intercourse with her. At this time, prosecutrix 'was really scared' and in fear of her life. When the act was completed, she suggested to the appellant that they go outside to get some fresh air and he agreed. Then, he went into the bathroom and the prosecutrix grabbed some clothes and fled to another nearby apartment house where she reported to her friends, the Evers, that 'he tried to kill me.' She was then taken to a hospital where her cuts were treated and she was also examined by a doctor who found sperm in her vagina.

Mike Evers testified that when the prosecutrix appeared at his apartment, she was so bloody and 'messed up,' he didn't recognize her at first. Lynn Evers testified that on the way to the hospital the prosecutrix revealed she had been raped.

Other evidence offered by the State showed the prosecutrix's apartment door had been forced, that her nightie was bloody and torn, that the bed was bloody and a razor blade was found in the bathroom.

Testifying in his own behalf, the appellant related the prosecutrix invited him to her apartment, had consented to the act of intercourse, and then had demanded money, stating that otherwise she would yell 'rape.' He further testified that when he refused, she threw an ashtray at him breaking it; that he then struck her, knocking her from the bed onto the floor where she cut herself on the broken ashtray. He admitted that he had a razor blade in his hip pocket for the purpose of car repairs and that it must have fallen out when he used his handkerchief to stop the prosecutrix's bleeding. He acknowledged that he immediately fled the apartment complex and stayed with various friends until he was arrested two weeks later for fear that the prosecutrix would, in fact, file rape charges.

In rebuttal, the State offered other evidence to point up a number of inconsistencies in the appellant's testimony. The jury chose to believe the State's version of the facts and the evidence is sufficient to support their verdict.

In Gorman v. State, 480 S.W.2d 188 (Tex.Cr.App.1972), this court wrote:

'The jury was charged on rape by force and threats. 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 statutory definition. . . . The jury may consider the cogency that the threats may have contributed to the force and the intensifying influence that the force may have had on the threats. . . .' 480 S.W.2d at 189.

Appellant, however, apparently takes the position that although he did not object to the court submitting a charge of rape by force and also by threats, there was 'no evidence of any threats,' and the conviction must stand or fall on whether the offense of rape by force was shown by the evidence.

Assuming, without deciding that appellant is correct, we conclude the evidence is sufficient to support a conviction for rape by force.

Article 1184, Vernon's Ann.P.C., provides that

"force' . . . must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.'

And, the facts of each individual case determine whether force exists, which, of necessity, renders it impossible to lay down a fixed standard by which it may be said that force has or has not been applied, in a rape case. See Bundren v. State, 152 Tex.Cr.R. 45, 211 S.W.2d 197 (1948); Zamora v. State, 449 S.W.2d 43 (Tex.Cr.App.1969).

In the instant case, the 22-year old appellant was shown to be 5 6 tall, weighing 145 pounds. While the record is silent as to the size or strength of the prosecutrix, there were other circumstances. The prosecutrix was shown to have been choked until her eyes were almost swollen shut, and she was cut about the eyes and back of her head, etc., with a razor blade. Despite this, she continued to struggle until she had fallen from the bed. Only after observing the extent of her injuries, and the fact that she was bleeding profusely, did she cease her resistance.

As Judge Douglas observed in Whitaker v. State, 467 S.W.2d 264 (Tex.Cr.App.1971), it is difficult to imagine just how much resistance a woman is required to exhibit when faced with the possibility of death or bodily harm. See also Gorman v. State, supra.

Appellant's first contention is overruled.

Appellant also complains the court erred in allowing him 'to be impeached by proof of details of a prior conviction.'

On direct examination at the guilt stage of the trial, appellant's counsel established that appellant had previously been convicted of 'an aggravated assault on a female' to which charge he had pled guilty.

On cross examination, the prosecutor inquired,

'Q Now, you said awhile ago you had been convicted of what, what did you tell your attorney awhile ago?

A Convicted of aggravated assault.

Q Who was that on?

A A female.

Q What did you assault her with?

A A knife.

MR. HAMPTON (Defense Counsel): The details are not admissible.'

The court overruled the objection. Alough exception to the court's ruling was made, no further relief was requested.

Thereafter, the prosecutor briefly established that the conviction was, in fact, for 'aggravated assault with a knife' committed 'on a woman.'

The appellant first injected the prior conviction into evidence and the only additional evidence elicited on cross examination was the fact the aggravated assault was committed with a knife which in fact was the true nature of the offense. ² See Article 1147(10), Vernon's Ann.P.C. The appellant, having opened the door, is in no position to complain if the State, on cross examination, establishes the true nature of the offense. The State did not improperly go into the details of a prior conviction.

Appellant further complains of the introduction of the complaint and information regarding this prior misdemeanor conviction at the penalty stage of the trial.

To show appellant's 'prior criminal record,' as permitted by Article 37.07, Vernon's Ann.C.C.P., the State offered the judgment of the prior conviction, earlier admitted by the appellant, as well as the complaint and information in such cause. Appellant did not object to the introduction of the judgment of conviction but objected as to the materiality of 'the charge.' On appeal, he complains the same was hearsay and tended to prove details of the prior conviction. The State takes the position that the...