Wright v. State

• Decision Date: 17 September 1975
• Docket Number: No. 49576,49576
• Citation: 527 S.W.2d 859
• Parties: Darrell Ray WRIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 859

527 S.W.2d 859

Darrell Ray WRIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 49576.

Court of Criminal Appeals of Texas.

Sept. 17, 1975.

Gerald M. Brown, Temple, for appellant.

Joe Carroll, Dist. Atty., Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for statutory rape under Article 1183 of the former Penal Code wherein the punishment was assessed at 30 years' imprisonment by the jury after the appellant had elected to be punished under the new Penal Code.

The indictment which was presented on May 23, 1973, alleged the offense occurred 'on or about 10th days of May, A.D. 1973'. The trial commenced on May 6, 1974, after the effective date of the new Penal Code (January 1, 1974). Since the proper resolution of several of appellant's grounds of error revolves around the fact the alleged offense occurred before the effective date of the new Penal Code and trial was conducted thereafter, we set forth the Saving Provisions accompanying the enactment of the new Penal Code which are particularly applicable to the grounds of error involved. 'Sec. 6. Saving Provisions. (a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act's effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. For purposes of this section, an offense is committed on or after the effective date of this Act if any element of the offense occurs on or after the effective date.

(b) Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, 'conviction' means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.

(c) In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punshment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.'

Initially appellant urges the trial court erred in refusing to dismiss the indictment in light of Section 6(b) of the above quoted Saving Provisions. He advances the contention that since the offense of statutory rape under Article 1183, V.A.P.C.1925, includes as an element of that offense a requirement that the complaining witness be under 18 years of age and since the offense of rape of a child under the new Penal Code (V.T.C.A., Penal Code, Section 21.09) requires that the complaining witness be under 17 years of age, Section 6(b), Supra, calls for dismissal. We do not agree. Section 6(b), Supra, speaks to 'conduct constituting an offense'. It does not provide that any offense under the former Penal Code must be carried forward into the new Code with precisely the same elements in order to avoid dismissal under Section 6(b), Supra. Practically every offense carried forward had been altered in language and many consist of different elements and some have been divided into separate offenses. Section 6(b), Supra, however, only requires dismissal in those cases where the 'conduct constituting the offense' under the former Code no longer constitutes an offense. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975). It is clear that the conduct of the appellant which constituted an offense under the former statutory rape statute also constitutes an offense under the new rape of a child statute. Specifically with respect to the issue of age, it was unconstroverted the prosecutrix was under 17 years of age at the time of the offense, to-wit: 15 years of age, rendering the 'conduct' in that respect within the prohibition of both the old and new statutes. If the prosecutrix had been 17 years of age, a different question would have been presented. See Ex parte Davila, (Tex.Cr.App.No. 50,334 delivered 7/16/1975).

Appellant's contention is overruled.

Appellant next complains of the trial court's action in granting the State's motion in limine prohibiting evidence of the prosecutrix's unchastity until the issue of consent was raised. Appellant acknowledges that under Article 1183, V.A.P.C. 1925, this Court has repeatedly held that if the prosecutrix is 15 years or older the accused in consent cases may show, as a defense, that she was not of previous chaste character, but that unchastity is no defense to prosecution where there is no issue of consent. See Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Lewis v. State,500 S.W.2d 167 (Tex.Cr.App.1973); Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970). Appellant reasons that sexual promiscuity is a defensive issue by nature of V.T.C.A., Penal Code, Section 21.09(b) regardless of whether consent is made an issue. Appellant perfected his claim for review by showing what evidence he would have offered. We find appellant's contention to be without merit. By virtue of the plain language of Section 6(b) of the Saving Provisions, the criminal action in this case was governed by the prior law. The appellant was charged with statutory rape and was tried for that offense. Section 21.09(b), Supra, therefore, was not applicable at appellant's trial. Only recently in Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975), and in McCarter v. State, 527 S.W.2d 296 (Tex.Cr.App.--delivered 7/16/1975), this court held that the trial court did not err in submitting the defense of insanity under the law as it existed at the time of the commission of the offense although the trial took place after the effective date of the new Penal Code.

Appellant also complains of the trial court's action in overruling his objection to the court's charge at the guilt stage of the trial, since such charge permitted the jury to find him guilty of 'conduct' which no longer constituted an offense after January 1, 1974. This ground of error is a different shading of the first ground of error and is overruled for the same reason. The submission of statutory rape by the court's charge was in direct compliance with the dictates of Section 6(b), Supra.

In three grounds of error appellant complains that the trial court erred in overruling his objections to the court's charge at the penalty stage of the trial, since he was not indicted for 'conduct' which would constitute the offense of aggravated rape of a child under V.T.C.A. Penal Code, Section 21.03, that the indictment did not allege he compelled submission to rape by threat of death, serious bodily injury or kidnapping, that the verdict forms submitted with the charge permitted the jury to assess punishment for 'conduct' for which he had not been indicted.

The appellant was indicted for the former Penal Code offense of statutory rape. This was the offense he was tried for after the effective date of the new Penal Code, and this was the offense for which he was convicted at the guilt stage of the trial. Under the circumstances of this case the appellant remains convicted of the former Code offense despite his written election to be punished under the new Penal Code. Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975).

Here the appellant filed his written election to be punished under the new Penal Code at the commencement of the trial, although he was not required to make this election until the 'sentencing hearing begins' (Section 6(c), Saving Provisions, New Penal Code, Supra). ¹ As a result of the written election, the trial court was confronted at the penalty stage of the trial with the problem of substituting the new Penal Code penalty provisions for the old Code offense of statutory rape of which appellant was convicted at the guilt stage of the trial. Evidence offered at the penalty stage of the trial involved State's witnesses who testified that appellant's reputation for being a peaceful and law-abiding citizen was 'bad' and a stipulation of appellant's prior convictions. The appellant recalled the prosecutrix, who admitted that 'less than a year' prior to the alleged offense she had committed An act of sexual intercourse with her boyfriend at that time. It was upon this proof and the evidence offered at the guilt stage of the proceedings that the trial court had to draft his charge at the penalty stage of the trial in light of the appellant's election to be punished under the new Penal Code, and varied provisions relating to the offense of rape. This court in its charge informed the jury that the punishment for 'rape of a child' was for a term of years not less than two nor more than twenty and a possible fine not to exceed $10,000. ² The court also instructed the jury that the punishment for aggravated rape of a child was by confinement for life or any term of years not less than five nor more than ninety-nine. ³ The court also instructed the jury what would constitute aggravated rape of a child under the provisions of V.T.C.A., Penal Code, Sec. 21.03. The verdict forms submitted were designed to reflect whether the jury found the rape here involved was aggravated or not. It would appear rape of a child and aggravated rape of a child would be the 'conduct' under the new Penal Code which would...