Love v. State

• Decision Date: 29 April 1987
• Docket Number: No. 2-85-129-CR,2-85-129-CR
• Citation: 730 S.W.2d 385
• Parties: Hershel Floyd LOVE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 385

730 S.W.2d 385

Hershel Floyd LOVE, Appellant, v. The STATE of Texas, State.

No. 2-85-129-CR.

Court of Appeals of Texas Fort Worth.

April 29, 1987.

Rehearing Denied June 3, 1987.

McMillan & Lewellen, P.C., Martin L. Peterson, Stephenville, for appellant.

Dan B. Grissom and Andrew Ottaway, Granbury, for State.

Before FENDER, C.J., and JOE SPURLOCK, II and HILL, JJ.

OPINION

FENDER, Chief Justice.

This is an appeal from a conviction for aggravated sexual abuse under former TEX.PENAL CODE ANN. sec. 21.05 (Vernon 1974) (as amended by Act of May 25, 1981). ¹ After the jury found appellant, Hershel Floyd Love, guilty, evidence was offered that he had been in the penitentiary for six previous felonies and had been convicted for simple assault in Hood County. The jury found that a single enhancement paragraph was true, and assessed punishment at life in the Texas Department of Corrections.

We affirm.

Evidence at trial showed that on August 29, 1983, appellant robbed and terrorized a group of five people who were playing dominoes at the home of Oleta Nichols in Hood County, Texas. In addition to robbing the parties, the defendant forced one of the persons, D__ C__, to submit to anal intercourse a number of times.

In his first point of error appellant contends that the trial court erred in denying his motion to quash the indictment. Appellant urges that although the indictment sufficiently alleged an offense, it failed to adequately particularize the conduct which would be relied upon by the State to show appellant's violation of the law. Specifically, appellant complains that the indictment was deficient in that it failed to indicate against which of the statutory meanings of "without consent" appellant should defend.

The aggravated sexual abuse statute in effect at the time, states as follows:

(a) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code ... and he:

....

(2) by acts, words, or deeds places the victim in fear of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone; or

(3) by acts, words, or deeds occurring in the presence of the victim threatens to cause death, serious bodily injury, or kidnapping to be inflicted on anyone ...

See id. Former section 21.04, in relevant part, provided as follows:

(a) A person commits an offense if, without the other person's consent and with intent to arouse or gratify the sexual desire of any person, the actor:

(1) engages in deviate sexual intercourse with the other person, not his spouse, whether the other person is of the same or opposite sex....

.... (b) The intercourse is without the other person's consent under one or more of the following circumstances:

[ (1) through (7) provide different definitions of lack of consent.]

TEX.PENAL CODE ANN. sec. 21.04 (Vernon 1974). ²

The indictment alleged that appellant:

[D]id then and there intentionally, with intent to arouse and gratify the sexual desire of said defendant, by threats and force, without the consent of [D__ C__] engage in deviate sexual intercourse with the said [D__ C__] by then and there placing his genitals in contact with the anus of the said [D__ C__] who was not his spouse, and in the course of said criminal episode the defendant, in the presence of [D__ C__], by acts, words, and deeds threatened to cause death and serious bodily injury to be inflicted on [D__ C__] and the defendant by acts, words, and deeds placed [D__ C__] in fear of death and serious bodily injury to be imminently inflicted on [D__ C__]....

This same issue was raised in Arnold v. State, 679 S.W.2d 156, 160-61 (Tex.App.--Dallas 1984, pet. ref'd). The appellant in Arnold also alleged that his indictment was insufficient because it did not allege which of the seven circumstances listed in former TEX.PENAL CODE ANN. sec. 21.02(b) (Vernon 1974) (as amended by Act of May 15, 1975), ³ applied to the facts of his case to establish lack of consent. The court in Arnold held that the indictment was sufficient to allege aggravated rape in that "[t]he allegation that appellant compelled submission 'by threatening serious bodily injury to be imminently inflicted' was sufficient to allege how the intercourse was without the consent of the victim." See Arnold, 679 S.W.2d at 160-61; see also Johnson v. State, 623 S.W.2d 654, 655 (Tex.Crim.App.1981). The indictment in this case alleges the facts and circumstances of the offense which made the act of sexual intercourse nonconsensual. The allegations concerning the threats were sufficient to place appellant on notice of the kind of lack of consent upon which the State would base its case. See Johnson, 623 S.W.2d at 656. Appellant's first point of error is overruled.

In his second point of error appellant contends that the trial court erred in denying appellant's motion to quash the jury panel. The record reflects that certain prospective jurors "spread the word" to an undetermined number of other members of the panel during a recess between the State's voir dire examination, that appellant was being tried a second time due to a technical defect in the verdict at a prior trial. ⁴

Appellant contends that the trial court should have granted his challenge to the entire panel, because he could not assure himself of the most successful use of his peremptory challenges. Appellant asserts there was no means by which he could accurately determine the bias of those who had heard the discussions, since pointed questions would only run the risk of influencing or informing the prospective jurors more.

The record reflects that fifteen jurors indicated they had heard some discussion about the case at the courthouse that day. Defense counsel questioned each of these jurors individually, asking each of them whether their knowledge that the case involved a retrial would put appellant at a disadvantage with them, and whether they could presume him innocent. The trial judge permitted individual voir dire of each juror who admitted that the case had been discussed at the courthouse. Defense counsel did not request any additional peremptory challenges. There is no showing in the record that appellant was required to accept any particular juror who was objectionable to him. See Payton v. State, 572 S.W.2d 677, 680 (Tex.Crim.App.1978) (opinion on reh'g).

In Gordy v. State, 159 Tex.Cr.R. 390, 264 S.W.2d 103 (1953), on voir dire examination of the jury panel by the defendant's counsel, a member of the jury panel answered that nothing he had read or heard about the case would influence his verdict, but the fact that defendant had been previously convicted would do so. It was not shown that that juror had served on the case, but the defendant urged that all of the panel members thus received information to the effect that he had been previously convicted of a similar offense. The Court of Criminal Appeals said:

The rule is somewhat relaxed in misdemeanor cases, where an accused may be tried for more than one offense upon the same complaint and information.

We have held that a juror is not disqualified by reason of his knowledge of other convictions against the accused. See Stephens v. State, 137 Tex.Cr.R. 551, 132 S.W.2d 878 [1939].

There is no showing that any juror who served in the case was prejudiced or had formed an opinion by reason of his knowledge of the former conviction.

The evidence sustains the conviction and we find no reversible error.

Id., 264 S.W.2d at 105.

In Meadows v. State, 143 Tex.Cr.R. 611, 160 S.W.2d 528 (1942) (per curiam), the Court of Criminal Appeals said:

It is insisted that members of the jury panel from which the jury in this case was selected heard the evidence or were present upon a former trial of this case, and were, therefore, disqualified from serving as jurors upon the instant trial. The bill of exception presenting this question affirmatively reflects that the jurors selected to try this case stated that they had no opinion in the cause and were not in any manner biased in favor of or prejudiced against the appellant. The mere fact that a juror has heard the evidence in a former trial does not disqualify him from serving as a juror upon a subsequent trial of the same case. It is only when such a juror has formed or expressed an opinion as to the guilt or innocence of the accused that he is disqualified to sit in the case. [Citations omitted.]

Id., 160 S.W.2d at 528.

The record reflects that appellant was allowed to individually voir dire each panel member who had heard discussion concerning the retrial. None of the jurors seated stated that they could not presume appellant innocent or that they were influenced by the knowledge that it was a retrial. None of the jurors indicated that they had established an opinion as to the guilt or innocence of appellant. See id.; Perkins v. State, 120 Tex.Cr.R. 399, 46 S.W.2d 672, 676 (1931) (per curiam). Appellant's second point of error is overruled.

In his third point of error, appellant contends that the trial court erred in failing to transfer venue either on its own motion or upon appellant's motion. Appellant complains that it was error to refuse to transfer venue because appellant was clearly forced to accept jurors who had read inadmissible evidence through newspaper accounts before they entered the jury box. Appellant contends that the information gained through the pre-trial publicity was inherently suspect and the resulting probability of unfairness required the procedural safeguard of a change of venue.

Prior to trial, appellant had made a motion for change of venue pursuant to TEX.CODE CRIM.PROC.ANN. art. 31.03(a)(1) (Vernon Pamph.Supp.1987). Appellant presented affidavits from citizens of Hood County who stated that appellant could not obtain a fair trial due to the publicity. The State filed a controverting affidavit from a resident of Hood County, Texas. The State's affiant declared that he had read the affidavits in...