Moore v. State

• Decision Date: 15 October 1980
• Docket Number: Nos. 58883,No. 1,58884,s. 58883,1
• Citation: 605 S.W.2d 924
• Parties: Ricky Levone MOORE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 924

605 S.W.2d 924

Ricky Levone MOORE, Appellant, v. The STATE of Texas, Appellee.

Nos. 58883, 58884.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 15, 1980.

Leonard M. Roth, Houston, for appellant.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Doug Shaver, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.

OPINION

W. C. DAVIS, Judge.

Cause No. 58,884 is an appeal from a conviction for the offense of aggravated sexual abuse. The punishment was assessed at imprisonment for ninety-nine years. Cause No. 58,883 is an appeal from an order revoking probation. In the case of the latter cause number, the appellant had pled guilty to the offense of attempted rape. Punishment was assessed at imprisonment for six years but the sentence was suspended and the appellant was placed on probation. We shall discuss each case separately.

In Cause No. 58,884, the appellant argues that the indictment is fatally defective because it fails to allege all the essential elements of aggravated sexual abuse. The indictment in part alleged that the appellant did,

"unlawfully with intent to arouse the sexual desire of the Defendant and by force and threat to inflict serious bodily injury and death to and without the effective consent of Vanessa Pettaway, a person not his spouse and hereafter styled the Complainant, have deviate sexual intercourse with the Complainant ..."

V.T.C.A. Penal Code, Sec. 21.05, which defines aggravated sexual abuse provides in part:

"(a) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code or sexual abuse of a child as defined in Section 21.10 of this code and he

(2) compels submission to the sexual abuse by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone."

The appellant contends that there was a total failure to allege that he threatened the complainant with imminent death or serious bodily injury. We agree and reverse.

The statute states that the threat must provide for the imminent infliction of death, serious bodily injury, or kidnapping. Just as the indictment must allege that the threat was of death, serious bodily injury or kidnapping, so must the indictment allege the threat was of imminent harm. Anything less would not allege all the elements of the offense of aggravated sexual abuse.

The language of this statute tracks the language of V.T.C.A. Penal Code, Sec. 21.03 which outlines the offense of aggravated rape. See also V.T.C.A. Penal Code, Sections 22.01(a)(2), and 29.02(a)(2). In the practice commentary to Section 21.03, it is noted that the threatened harm must be "imminent" and "hence a threat to harm someone at an indeterminate time in the future does not aggravate." This Court in Blount v. State, 542 S.W.2d 164 (Tex.Cr.App.1976), reversed an aggravated rape conviction because the aggravation element was not established by the evidence. The threat involved was held to be conditional and to take place at some indefinite time in the future and therefore not "imminent."

In the case at bar the indictment alleges only that a threat was made. It completely fails to allege that the threatened harm was to take place very shortly upon failure by the complainant to submit to the appellant's demands. Such imminent infliction of harm cannot be inferred from the allegations in the indictment. Nor does the indictment allege that a deadly weapon was displayed so as to constitute a...