Willis v. State, 44288

• Decision Date: 30 November 1971
• Docket Number: No. 44288,44288
• Citation: Willis v. State, 473 S.W.2d 200 (Tex. Crim. App. 1971)
• Parties: Joe Dempsey WILLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 200

473 S.W.2d 200

Joe Dempsey WILLIS, Appellant, v. The STATE of Texas, Appellee.

No. 44288.

Court of Criminal Appeals of Texas.

Nov. 30, 1971.

Donald W. Raven, Austin, for appellant.

Robert O. Smith, Dist. Atty., Lawrence Wells and Phoebe Lester, Asst. Dist. Attys., and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The appellant waived a jury trial, entered a plea of not guilty before the court to a charge of assault with intent to rape; the prosecutrix was alleged to be under eighteen years of age. On a finding of guilty, the court assessed punishment at ten years.

The appellant contends that there is insufficient evidence to support the court's findings and the judgment entered by the court. The specific complaint is that 'there was no showing of an assault and present intent to have intercourse with the prosecutrix.'

One who handles or takes hold of the person of a female under the age of consent, with the present intent of having carnal knowledge of her, then and there, either with or without her actual consent, is guilty of an assault with intent to rape. Melton v. State, Tex.Cr.App., 442 S.W.2d 687; Steptoe v. State, 134 Tex.Cr.R. 320, 115 S.W.2d 916; Wilson v. State, 94 Tex.Cr.R. 373, 251 S.W. 221; Croomes v. State, 40 Tex.Cr.R. 672, 51 S.W. 924; Alexander v. State, 58 Tex.Cr.R. 621, 127 S.W. 189; Cromeans v. State, 59 Tex.Cr.R. 611, 129 S.W. 1129.

The intent or purpose of the appellant must be determined by the trier of the facts from appellant's conduct, in light of the facts and circumstances shown. In doing so, the trier of the facts has the right and duty to consider the experience of mankind.

It will be necessary to relate some of the sordid details of the evidence found in the record.

The prosecutrix was a fourteen-year-old high school girl. In the early afternoon, she and another fourteen-year-old high school girl were in a motel room on the East side of Austin, with Leroy Edwards, David Hampton and the appellant. While at the motel, the three men 'raped' the other girl. They left the motel room at about 3:30 p.m. and went to a house, which the appellant rented. Leroy Edwards then left the group.

After they arrived at appellant's house, David Hampton and appellant 'fixed' barbiturates and, using a syringe, injected the barbiturates into themselves, into each of the girls and into a fourteen-year-old boyfriend of the prosecutrix, who had also come to the appellant's house.

At about dark, the other girl left the appellant's house.

The prosecutrix remembered being at the motel and going over to appellant's house. She remembered that appellant and Hampton began injecting the drugs into their arms and into the arms of the others present. She soon passed out and could not remember anything until she was revived in the hospital.

The fourteen-year-old boy could remember being at appellant's house and that appellant and Hampton injected him, the girls and themselves with drugs. He soon passed out and could not remember anything until he awakened at his home.

During the evening, Bronte Standifer and a girl by the name of Nancy, whom he later married and who was his wife at the time of trial, came to the appellant's house. When they arrived, right after dark, the other fourteen-year-old girl was lying on the floor and Hampton was sitting on her. She did not at that time have control of herself and she was laughing and crying. Standifer thought that she was 'high'. During this visit Standifer saw the appellant holding the arm of the prosecutrix and Hampton was injecting 'dope' into her arm with a syringe. The prosecutrix was yelling for her fourteen-year-old boyfriend and she was laughing and crying and she was 'high'. The fourteen-year-old boy was lying asleep or passed out on the bed. Standifer saw pills, capsules and a syringe around the house. Either the appellant or Hampton told Standifer that they had given the prosecutrix a 'downer'.

Standifer left the house and returned in about an hour or an hour and a half. When he returned, the prosecutrix was lying on the bed with a sheet over her. Either the appellant or Hampton raised up the sheet and the other spoke to Standifer, directing his attention to her nude body on the bed under the sheet.

Standifer again left their presence, but returned in fifteen or twenty minutes. When he returned, Hampton was lying crossways at the head of the bed. The prosecutrix was lying lengthwise...