Roper v. State, 36388
| Decision Date | 08 January 1964 |
| Docket Number | No. 36388,36388 |
| Citation | 375 S.W.2d 454 |
| Parties | Jimmie Curtis ROPER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Will A. Knight, Tyler, Welby K. Parish, Gilmer, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is rape by force; the punishment, confinement in the penitentiary for 75 years.
The evidence reflects that prosecutrix was a 27 year old woman who had lived in Tyler for five years and worked for an oil company in that community. Upon walking from work to her apartment on the evening in question, and entering her front door, a man came up behind her and put his left hand across her mouth and nose, thus preventing her from breating. Prosecutrix testified that she could not see her attacker's face and that he held a knife to her throat; that he told her to do everything that he said and she would not get hurt; that the man pulled her back into the bathroom where two strips of adhesive tape were stuck to the wall. The tape was subsequently placed over her mouth and eyes in such a manner as to prevent sight or speech. The knife was still at her throat, and she feared for her life. The man took her to her bed where he tied her wrists with cord and undressed her. He then had intercourse with her, placing his private parts in hers, without her consent. Upon finishing, her assailant talked to her for about 35 minutes, removing the tape from her mouth to enable her to answer. The prosecutrix testified that she did not scream because she was in fear of her life.
The prosecutrix further testified that after her assailant left, upon freeing herself, she found the telephone to be disconnected but was able to hook it up. She called her office manager where she worked and reported that she had been raped. She was then taken to the hospital and remained there overnight. A couple of days later she (prosecutrix) identified appellant's voice as that of the man who raped her. She had not seen appellant's face until the beginning of the trial, nor could she recall ever speaking to him prior to the offense in question.
Appellant's confession was admitted into evidence and reflects that he lived in the same apartment house as the prosecutrix and that his wife had been gone for about a week; that he had only spoken to prosecutrix on one occasion and had never had a conversation with her. On the afternoon in question, he went into her apartment around 3:00 carrying a butcher knife and some adhesive tape and stayed there until around 5 o'clock. The remainder of the confession contains substantially the same account of the commission of the offense as that of prosecutrix stated above.
Photographs of the apartment and the bed were introduced, showing the bed to be disarranged. The adhesive tape and venetian blinds cords were also introduced into evidence.
Herbert Isham, a detective for the city of Tyler confirmed prosecutrix's statement that she identified appellant's voice at the police station. Dr. C. R. Hunt, a medical doctor, who was called as a witness by the state, testified that he examined prosecutrix about an hour after the incident had occurred and found abrasions or scratches on her wrists, a fine scratch on the middle portion of her neck and numerous sperm or male sexual cells were found in her vagina.
The jury returned a verdict favorable to the state, and we find the evidence sufficient to support their verdict.
There are no formal bills of exception in the record. Appellant did not testify or offer any evidence in his behalf.
Appellant complains that the trial court erred in not permitting him to cross-examine the prosecutrix in an attempt to prove her to be of prior unchaste character. For the purpose of the bill, the prosecutrix testified, outside the hearing of the jury and in response to interrogation by appellant's counsel, that on the afternoon in question there was a quantity of birth control pills in her apartment, but she had never used them to prevent conception but rather to help regulate her menstrual flow. She also admitted to having intercourse with one other person prior to the day in question.
Appellant insists that the issue of consent was raised when the appellant pleaded not guilty to the indictment and that since it was raised, the prosecutrix's character as to chastity was put into issue. The cases cited by appellant in his behalf as to this matter are cases in which statutory rape is the offense and not rape by force, as in the instant cause.
We agree that when the issue of consent is raised, proof of specific instances of unchastity with appellant may be admissible, however, we cannot agree that the issue of consent is raised by a plea of...
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...v. State, 452 S.W.2d 498, 500 (Tex.Cr.App.1970) (so holding, and citing several other cases where it was so held). In Roper v. State, 375 S.W.2d 454 (Tex.Cr.App.1964), a witness gave an unresponsive statement that the defendant took a polygraph examination during the police investigation, w......
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