McClendon v. State

• Citation: 643 S.W.2d 936
• Decision Date: 20 October 1982
• Docket Number: No. 2,No. 63566,63566,2
• Parties: Fred Wesley McCLENDON, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 936

643 S.W.2d 936

Fred Wesley McCLENDON, Appellant, v. The STATE of Texas, Appellee.

No. 63566.

Court of Criminal Appeals of Texas,

Panel No. 2.

Oct. 20, 1982.

Charles W. Tessmer and Bentley C. Kelly, III, on appeal only, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Gregory S. Long and Michael P. Patterson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P.J., and CLINTON and TEAGUE, JJ.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for attempt in which the punishment was assessed at eighteen years confinement.

The sufficiency of the evidence is challenged.

The indictment on which appellant's conviction is predicated alleged in pertinent part, that he:

"did unlawfully, then and there with the specific intent to commit the offense of aggravated rape, attempt to have sexual intercourse with B___ A___ M___, ¹ hereinafter called complainant, a female not his wife, without the consent of the said complainant and did then and there attempt to compel the complainant to submit to such act of sexual intercourse by knowingly and intentionally threatening the imminent infliction of serious bodily injury on the complainant; said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended." ²

He now contends the evidence is insufficient to prove, in the absence of a verbal threat or exhibition of a deadly weapon per se, that it was by threatening the imminent infliction of serious bodily injury, that he attempted to have sexual intercourse with the complainant without her consent. This contention is without merit.

Viewed in a light most favorable to the trial court's finding of "guilty," the evidence established the complainant was involved in a minor one car collision at approximately 4:30 a.m., on October 29, 1978. A man, identified as appellant, and a woman came separately to her aid; the woman said she did not have a telephone. Appellant kept insisting she could come with him to his house to use the phone. Bea resisted this idea, asking the woman if any of her neighbors had telephones. Appellant interjected that his roommate was home and assured Bea she would be safe. The woman encouraged Bea to go with appellant, remarking that she needed a telephone and he seemed to be a "good guy." Finally, Bea agreed to follow appellant to his house.

The front fender of Bea's car was bent and was rubbing noisily against a tire, so she agreed to get in the car with appellant. Arriving at the house, appellant went into his room to try the phone; he told Bea someone was on it. He told her to come listen, so she stepped just inside the bedroom so she could put the receiver to her ear, and she could hear someone talking. Appellant hung up the phone. When he stood up, he grabbed Bea and threw her on the bed, saying, "I'm going to do it to you."

Struggling, Bea started pleading with appellant, who told her he would not hurt her if she would just be still. But she would not be still. Appellant stood up and said, "I told you not to move, I wouldn't hurt you," and hit her with his fist, once in the eye, and again "upside the head," knocking her back on the bed each time.

Saying "I'm going to get me some of that white stuff," appellant began pulling Bea's pants off; she started kicking. This time appellant hit her in the eye with a hard, heavy black object. Bea testified the object looked like State's Exhibit No. 1, a weapon commonly known as a "slap stick." ³ At this point Bea began to bleed "bad, very bad;" blood was all in her eyes and she was stunned. When she "regained [her] senses," she saw appellant was nude from the waist down. She pushed him with her feet.

He hit her again about her head and eyes with the slap stick, and grabbed her arm, telling her to take off her blouse; she refused. He said, "You will take it off," hit her again and ripped off her blouse, then her bra. After all Bea's clothes were off appellant pulled her off the bed and, hitting her again, dragged her onto the floor. According to Bea:

"He grabbed me by the throat and I thought he was going to kill me and I told him he would have to kill me and he said, 'I am going to have me some of that white stuff.' "

She told him again "he'd have to kill [her] first." Bea believed appellant was going to kill her, and she started saying her prayers.

At this point, another man walked into the room and told appellant to "get her out" of there. Appellant stood up and the two men began arguing. Bea started to get up, but appellant hit her three more times in the head with the slap stick, telling her to get dressed. He hit her twice more because she was not getting dressed fast enough and the other man finally grabbed him to prevent his hitting her again, saying, "I told you she's had enough, leave her alone." Appellant dragged Bea out the front door and into the yard, still hitting her. The other man had come out on the front porch and called to appellant, "I told you to stop."

Appellant let Bea fall, and she "played dead." He walked off, then came back and pushed her with his foot. Then he walked to his car. Bea testified she could hear him "just fooling around" in his car, not starting it.

In the interim, Larry Houston had heard someone screaming for help at about 5:00 a.m. From an upstairs window in a neighboring house, Houston could see a man holding a dark object in his hand, chasing a woman. When the man caught the woman, he hit her in the back of the head with the object which was about the size of a Coke bottle. She fell. Standing over her, the man kept telling her to get up. The man then got in a car. Houston at this point called the police.

By the time the police arrived, appellant had started his car and was backing out the driveway. According to an arresting officer, Bea was badly bruised, both her eyes were black and swollen and her hair was caked with blood. There was blood all over her face, neck and other parts of her body. Appellant, who was clothed only in a pair of pants, was arrested and a search of his car produced the slap stick, States' Exhibit No. 1.

Bea testified that before appellant's housemate entered the room she believed appellant was going to kill her because she was "losing so much blood and getting weak, and he did not seem like he was going to stop." Several color photographs taken of appellant's room after the assault reveal the carpet, bed, walls, telephone and some of Bea's clothing to have been blood soaked and spattered.

Appellant argues that because he neither verbally threatened Bea with death nor displayed a deadly weapon per se, the evidence is insufficient to prove he attempted to compel Bea's submission by threatening the imminent infliction of serious bodily injury.

It has long been the law of this State that a threat can be communicated by action or conduct as well as verbally. Berry v. State, 579 S.W.2d 487 (Tex.Cr.App.1979); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977); Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965). Neither has this Court required proof that a deadly weapon, per se, was used or exhibited for a determination that evidence is sufficient to establish...