Rogers v. State
| Decision Date | 10 January 1979 |
| Docket Number | No. 57204,No. 3,57204,3 |
| Citation | 575 S.W.2d 555 |
| Parties | Joseph Lynn ROGERS, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Hugh E. O'Fiel, Beaumont, for appellant.
Tom Hanna, Dist. Atty., and William G. Ogletree, Asst. Dist. Atty., Beaumont, for the State.
Before DOUGLAS and TOM G. DAVIS, JJ.
Appeal is taken from a conviction for aggravated rape. V.T.C.A. Penal Code, Sec. 21.03. Punishment was assessed by the jury at 30 years.
In addition to the brief filed by the appellant's appointed counsel, appellant has filed a pro se brief raising an additional ground of error. Although this pro se brief was neither timely filed nor filed with the clerk of the trial court, we have concluded that this contention should be considered in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.
Appellant challenges the sufficiency of the evidence to prove that the rape was aggravated. Appellant does not contend that the evidence was insufficient to support a conviction for rape under V.T.C.A. Penal Code, Sec. 21.02, but only maintains that the evidence was insufficient to prove that he compelled "submission to the rape by threat of death (or) serious bodily injury." Sec. 21.03(a)(2). This contention requires an in-depth review of the evidence regarding appellant's actions and the threats made.
On direct examination of the prosecutrix, the following testimony was elicited:
On cross-examination, the following testimony was given by the prosecutrix:
The issue presented is whether the blow inflicted by the appellant upon entry and the threat to "hurt" the prosecutrix are sufficient to support a finding that he threatened imminent and serious bodily injury.
V.T.C.A. Penal Code, Sec. 1.07(a)(34), defines serious bodily injury as:
" 'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Thus, unless the acts of the appellant threatened serious bodily injury as defined above, the conviction for aggravated rape cannot stand.
In Blount v. State, 542 S.W.2d 164, this Court was faced with a similar situation. The rape victim in Blount had received a bruise on her arm from being dragged to the bedroom by two men that had broken into her trailer. No weapons were exhibited and no present threats of death were made.
The Court, in considering whether threats of serious bodily injury were made, stated the following:
"A threat can be communicated by action or conduct as well as words. Most v. State, Tex.Cr.App., 386 S.W.2d 537; May v. State, 172 Tex.Cr.R. 490, 358 S.W.2d 379. In the instant case, however, there was no evidence of any threat by any means that rose to the level of the quoted statutory definition. No weapons were used; the prosecutrix was not mistreated to the extent that serious bodily injury might have resulted, and no verbal or written threats of such nature were communicated.
The Court concluded that although the evidence was sufficient to prove rape under V.T.C.A. Penal Code, Sec. 21.02, it was insufficient to show an aggravated rape under Sec. 21.03, supra, and thus the case was reversed.
In Little v. State, 573 S.W.2d 775, this Court found the evidence sufficient to support a conviction for aggravated rape. In Little, the prosecutrix was being helped by the defendant in repairing a flat tire on her car when she "felt something strike her head" and lost consciousness. She awoke to find the defendant engaged in intercourse with her. The defendant threatened to kill her when she asked him a question; she then again lost consciousness. It was shown that she had suffered severe bruises to her face, had cuts in and around her mouth, and around her hose and left ear, and that her jaw and some teeth had been broken. She was unable to testify as to what the appellant hit her with, however. The Court in Little held the blow delivered in a manner as to break her jaw and render her unconscious, coupled with the threats on her life, were sufficient proof to support the conviction for aggravated rape.
In Brown v. State, 576 S.W.2d 820 (1978), this Court found that holding a gun to the prosecutrix's head during the rape was sufficient to show the aggravating circumstances as required under Art. 21.03, supra. In Banks v. State, 530 S.W.2d 940, this Court found that a showing that the defendant had a pistol and threatened to kill the rape victim was sufficient to show a threat of serious bodily injury.
In Church v. State, Tex.Cr.App., 552 S.W.2d 138, a showing that the defendant placed a knife to the victim's throat was sufficient to show the requisite threat under Art. 21.03, supra. A combination of choking the victim, and then threatening the victim with a knife, was sufficient to support a conviction for aggravated rape in Twomey v. State, Tex.Cr.App., 520 S.W.2d 784.
The cases above illustrate the proof necessary for a finding of a threat of serious bodily injury. In each case where this Court held the evidence was sufficient to support a conviction under Sec. 21.03, there was a showing that a gun or knife was used, or a threat to kill the victim was made, or serious bodily injury was inflicted, or a combination of two or more of these factors. 2 Only in Blount, supra, where the proof did not show that any of these three acts had occurred, did the Court fail...
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Stephens v. State
...may be retried for the offense of burglary of a building." Among the cases which have cited and follow Moss are: Rogers v. State, 575 S.W.2d 555 at 559 (Tex.Cr.App.1979) (aggravated rape); Ex parte Harris, 600 S.W.2d 791 at 792-793 (Tex.Cr.App.1980) (aggravated robbery); Cruz v. State, 629 ......
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Ex parte Granger
...parte Harris, supra, and its predecessors, Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978) (Opinion on rehearing), and Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979), that conviction for a lesser included offense was permissible after acquittal for the greater inclusive offense.2 Appella......
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...or serious bodily injury only when a gun or a knife was used, or serious bodily injury was in fact inflicted, or both. Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979). The facts of this case are very similar to those of Rogers, supra: no express, verbal threat was made to compel submissio......