*1 WALKER, McGEE, STEAKLEY
JJ., dissent.
WALKER, (dissenting). Justice city power rule enact home has full
A not inconsistent with ordinance or- law. The general
Constitution or with no contravenes now in question
dinance authorized expressly law and is
general particularly It seems
Art. V.A.T.S. pro- this Court to
inappropriate then exception. arbitrary judicial
mulgate an constitutionally ordinance not be may will course, in a manner that
applied, of fact, was, in
destroy rights of who one incapable giving of
physically mentally
notice, disability anyone legal under
obviously expected make could not be other These and the
offer of settlement. City
exceptions mentioned Wones v.
Houston, Tex.Civ.App., 281 S.W.2d entirely
(no writ), proper, are but would no applica- has
not hold the ordinance every person years age.
tion to under McGEE, JJ., join
STEAKLEY and Opinion
this dissent. delivered June
1972. DOUTHIT, Appellant,
Ellis Kennedy
The STATE of Texas, Appellee.
No. 44266. Appeals
Court Criminal of Texas.
Dec.
Rehearing May Denied July Rehearing Denied
Second *2 & Levgarg, Weeks Herrington, Jones Austin, Tess- Weeks, Charles W. Terry
J. Goranson, Dal- L. appeal), Ronald (on mer appellant. appeal), for (on las Atty., Smith, Herman Dist. O. Robert Sykes Hous- Gotcher, Lawrence Wells Vollers, D. ton, Attys., Dist. Asst. Jim Huttash, Asst. A. Atty., Robert State’s Austin, the State. for Atty., State’s OPINION DOUGLAS, Judge. by a conviction appeal from a
This is an to commit with the for punishment rape. assessed years. at sixteen chal- evidence is sufficiency lenged. m., p. September
At 11:00 approximately a married woman 6, 1969, prosecutrix, twenty-two years age who had been dexadrine. This, along with conver- some visiting parents, sation, returning to their lasted about an hour. room in the Chariot Inn Motel Austin Then shirt, took off saying hamburgers cigarettes some hurt, his shoulder and told prosecutrix to them. as she turned the motel into Just smoking rub it. After cigarette another driveway, a car behind her flashed a red *3 told her to her remove dress. she When light. pulled parked. She and The over got angry, hesitated put gun he her to appellant, other who was the driver of the stomach and told her she had better do as car, himself as Reed Sergeant identified completely undress he said. He had her showing badge her a and identification appellant and then he undressed. Then illegal card. He told her she had made an sodomy upon perform forced her to oral turn, pickup that had a on a car like he away prosecutrix pull him. The tried to
hers, Appellant and wanted to talk her. to began crying, and head but he held her told hamburgers, get her to leave the her Appellant down. then her to have forced keys purse get and his car. into sexual intercourse with him. did not She prosecutrix
After the entered reaching resist because of fear. After a car he told her he wanted to talk to her appellant cigarette climax the had another they husband so might bring the matter to again perform and forced her to oral sodo- a taking close without jail. Appel- her to my. After a forced few minutes of this he lant did not turn at her house but turned her into anal intercourse. She testified off and gravel drove down a road. He that she was in life constant fear of her stopped, turned on the inside light and complied and would not have otherwise placed gun a to her neck. He told her that his demands. Around a. m. 6:00 7:00 policeman, he killed killing had a her day they the next left this location and would make no difference and that he need- Again went to a motel in he San Marcos. hostage. ed a He tied her hands behind had sexual intercourse with her. These her and tied her ankles. place County. events took they p. m. returned to Aus- Around 2:30 Appellant prosecutrix told he needed to tin to the Austin Mu- appellant went hide the car place safe and asked her exchanged rental nicipal Airport and where he could do so and then told her driving car for his The he had own. been that she would not be hurt she followed testimony they to a shows that then went his instructions. All of place took Georgetown in Coun- motel in Williamson County. ty relations. again had sexual prosecutrix then appellant directed m., p. appellant Around 9:00 let to drive Wimberley toward where she prosecutrix just out of the car outside Aus- her husband had once lived. Outside San apartment tin. went to the of some She way Marcos and on Wimberley to he police friends where the were called. Dr. stopped. turned a side road and He onto Railey Milton testified that he examin- J. untied her hands her to and tied left arm her, recently ed determined that she leg. her ciga- left then smoked a intercourse, markings had sexual found , pills. rette drank a beer and some took on her irri- wrists and found the anal area They spot left this he said it was because tated. highway. Appellant too close to the then appellant stopped drove into a field and behind called witnesses from the tree, untied her ankles left hand but motel in San Marcos and the one leg Georgetown, then tied her left something registered to under where under smoked, name, the seat. He more and different in an apparent attempt beer to drank pills prosecutrix consumed more which he told her were show that the might have had replied going “get that he to and he was escape to from him. opportunity pants.” attempted to her Griffin testify.1 did not during their drive. He the woman fondle tried appears It stopped gate at a to field where tried the offense of unsuccessfully get away. did man- She guilty found not in Williamson away magazine his age to throw nothing regarding The record else contains field, gun. then drove into the tried to He that trial. force out of the car and threatened Knowing not gun load- shoot her. the trial Appellant contends ed she He then took her back refused. in refus jury and in its erred difficulty Acknowledging town. on what ing requested charge give his however, situation, Court, fact did not in of assault constitutes the offense “in sufficiency rule evidence *4 rape. tent to the is to be re- view of fact case upon question.” That other charged: The court versed another charge question stat- charge. was the a of de- conviction the “To warrant beyond jury a reason- ed that the must find of with intent to com- fendant an assault able “did then and doubt the defendant rape, appear mit the crime of it must there, unlawfully of means force beyond the a reasonable from evidence upon threats, [prosecu- or an make assault doubt, .defendant, first, the that at the assault, so and that said com- trix] indictment, place alleged time and the mitted, de- was made with the intent of the upon_ in and made assault then there to fendant have carnal second, that the de- (prosecutrix), and (prosecu- of said . . knowledge the . intent the and there had then fendant consent, trix), with or without her de- threats, as above assault and such ” that under . This Court said such the konwledge of fined, carnal to obtain upon charge the could convict facts _ without (prosecutrix) said prose- showing that accused touched the the will.” her against consent and her pistol upon cutrix or her with drew the purpose having intercourse ulterior of to requested opinion says was the with her. The this charge: changed former rule in Cromeans but State, of ‘assault offense 129 S.W. “To constitute the rape’ be an as- “appears to there must then rule to with intent since be part in- present and a intent on the to assault with sault constitute the offense of subject prosecutrix to be a of the accused tent there must to not, subject so will, consent to part to with her on the of accused then, time, very have consent or may will, that he at the to his with her time, then, not, may very with her.” at the intercourse so sup- (Emphasis intercourse with her.” only that not must contends plied.) accompanied by pres- be an there ques- look constrained We are to at there) rape, ent (then but Particularly must closely. tion we more carry intent must also be that intent to out is cited look the Cromeans case which at there, immediately. then e. He relies i. State, changing supra, as Griffin State, 151 Tex.Cr.R. Griffin rule. former In defendant Griffin, 259. S.W.2d 16-year- supra, a in- In gunpoint had forced Cromeans v. get a woman at 15-year-old girl to show old asked a inquired boy to his intent his car. She penalty stage for violat- been convicted it of the trial was shown At the ing the Mann Act. Federal inter- agree sexual do not with the organs him her sexual and to have We Griffin Cromeans, do pretation the rule in Nor both re- of intercourse with him. She refused Griffin hand and we understand how quests. grabbed He then her it arm; opinion what the said grabbed her would authorize broke loose. He then she boy was would. loose and ran. broke convicted of assault with intent be limited its The Cromeans case must year punishment. and assessed a two On holding. It was there factual situation original judgment af- submission the stated: McAvoy authority firmed of on the evidence, In taking 41 Tex.Cr.R. hold that “We circumstances, McAvoy, upheld an instruction age Court all the touch- jury stating slightest surroundings, meagerness that “the parties, ing person (a girl words, slight of the Race interview, Carrie of the the few years age), under the ulterior touching, justify the ver- act of does not purpose part and intent on the of the de- at dict.” 129 S.W. organ fendant at the time his male to force rule that where If it has ever been the organ the female said into' Carrie by threatening and a man makes an assault
Race, in- would constitute an assault with holding gun upon with intent woman rape.” tent to against forcibly have intercourse with Cromeans, supra, will, In at the second motion her intent must be to have *5 that such time,” rehearing Special Judge “then, very Cobb wrote the it is intercourse at the opinion reversing the judgment and there- longer now no the law. by limiting McAvoy. He the stated Court’s hold that an assault is made We when
holding as follows: woman, forcibly the rape with intent to a
“Solicitation, accompanied by though complete the ex- offense is at that time he pectation planned of consent laying on of take the victim other lo- to to some cation, hands county, carry without the in- use of such force as even to another to a purpose dicates to purpose. obtain at out his intercourse time, very does not amount to assault To State, the extent that v. su Griffin rape to girl commit on a un- pra, any other cases in are conflict years der age.” 15 holding present they with the in the case opinion shows concern with the fol- are overruled.2 lowing: (1) ages parties; (2) of both action; slightness of the assaultive in present adequately case (3) action, espe- what was intended sets out the essential elements of an assault cially in immediately connection with the rape. with intent to preceding pointed solicitation. The Court slightly Ordinarily
out that to intending prosecuted assault her to will be accused obtain her in county attempts consent was not sufficient to es- the same to where he carry design. tablish the crime. out his State, supra, import 2. Griffin v. and other eases their extent this was not g. appellant, they cited e. Winans v. are overruled. State, 182, 114 24 indi Tex.Cr.R. S.W.2d Other cases affirmed this Court 421, unnecessary State, v. to Huebsch 94 Tex.Cr.R. cate that it to intend is 461, 1079, carry design 251 S.W. do use the words out the felonious immediate very ly “then, beginning at the time” and “immediate” at of the assault. See State, 368, to describe when the intent be was to v. 150 Tex.Cr.R. 200 Shelton import 1004; State, carried The real Tex. out. of those S.W.2d Fowler v. 66 576; Rogers was decisions to connect the assaultive Cr.R. 148 S.W. rape. State, action with an intent 65 To Tex.Cr.R. 160
Next, rape. the intent to From the facts appellant contends a and circumstances it for the was insufficient to show was reasonable evidence County jury rape intent to in since there to so conclude that the assault with Travis gun County neither made made for remarks purpose is rape rape. any intent nor did he find concerning We evidence support in sufficient to their conclusion. engage in sexual acts with her above, present County. As noted Travis accompany intent to must the assaul- contends that com also no intent in
tive action. If there was pleted sup act of sexual intercourse will not Travis but it arose later another port a for assault with intent to conviction county, properly he could not be convicted rape. Taylor State, He cites 50 Tex.Cr. rape for assault with State, R. 94; Bourland 49 S.W. 115; Tex.Cr.R. Callison v. S.W. 211, 39 37 Tex.Cr.R. S.W. first regarding direct examination On cases These describe assault with intent in a near Wimber- alleged sexual acts field incomplete they rape, do not as but County, following ley support appellant’s which was contention stated: explicitly rejected by this Court in Carr Okay, “Q. point one other would like I 255 S.W.2d clarify. you As the field State, Tex.Cr.App., See Nielson v. you yesterday, and believe testified No 862, and the cited. S.W.2d cases there pointed you stated that defendant error is shown. pistol your stomach. Complaint trial is made Yes, “A. sir. grant new trial refusing court erred in “Q. you And he told to undress. Was experiment because the conducted point? there a conversation at at not introduced considered evidence *6 for hearing on motion the trial. the the At Well, any “A. he asked me if I had idea trial, that jurors of the testified new one that going happen, was I she been about no bruises had worried said, well, was, presumed I that that it electric from the prosecutrix’s ankles that couldn’t think other rea- I around them. She cord which was tied why stopped son he would have me.” during that their deliberations testified asking question plus The his acts and had pot coffee the cord from the took indicate appellant’s intent when he around tying in it assist her juror another prosecutrix enter his forced car and her at that cord her stated ankles. She “[t]he gunpoint him, come inquired with and he anything do with was so thick couldn’t we whether she realized intent. She stated well, silly, it, this is so thought, and I jury that she Apparently did. had no off the cord.” took reasonable doubt about intent to improper is for rape when it began general he his assaultive action in as a rule While juror experiments Travis or demon- County perform both from the acts which room, every occurred it not during episode jury the entire in the is as well strations testimony. as this for a reversal. The fact that he forced that calls demonstration sodomy State, Tex.Cr.App., her commit him 379 S.W.2d does not McLane v. fact, show as that some new appellant contended he 339. must be that It shown purpose appellant, could her was discovered have taken for hurtful to in alone. experiment He could taken her for both the and influenced State, Tex.Cr.App., purposes. Ingram fact that he stated he case. showing is made hostage needed a because he had killed a such No S.W.2d policeman disprove did not that he present assaulted case. and,
Next, being appellant offense; contends the trial for the same such, permitted to acquittal doctrines bar state cannot be carving and former prosecute he for intent to present again case assault with prosecution in the because minor arising The state carve the acquitted on a murder. can was part and convict on out of the transaction same transaction. that, major part of the or can carve the carving may Under the doctrine State that. How- transaction and convict on single large carve as an offense out of ever, only the one the state can carve only as it cut transaction it can but must Id., time.” at 880. State, Tex.Cr.App., 440 once. Suber v. methods of assault throw- contends various S.W.2d clothes, County, hitting, cutting episode ing orange, entire beginning Travis counties, like, following continuing through stomping, two and the with one the other immediately single upon the other and vir- ending County was a almost Travis single tually place at the same prosecutrix transaction. Because was constitute cites appellant under a transaction. continuous Paschal Tex.Cr.R. present In the a continuous we have case authority as for his contention. In during several other assaultive action which Paschal, the defendant completed occurred. transactions and crimes wife, “. . . an orange threw at his In Ledesma it, eyes her between the struck and another 181 S.W.2d fell; and she ... he then hit her six raped prosecutrix alternatively fist, down, his knocked her other held a knife times each while the her, kicked and then hit threw a rock and to her This referred to throat. Court cow; he then stamped ... and choked intercourse” as acts of “several sexual wife; . . . the latter then went to the “accomplished “transactions” which were hogpen, again; and he hit her . force and threats.” by one continuous act of appellant’s wife and then started witness In the case the transactions house, and at the fence place. in time and separated even more caught again, clothes; her her cut preclude a carving not doctrine does they house, . . . then went in prosecution for assault with began cutting he her clothes with a knife County prosecution after a again; jerked ... her to the because, even rape Williamson her, floor and kicked and made if he con- under one though the going to kick again; *7 threats, the two of act force and tinuous they then went into and the south room single transac- part not of a offenses were appellant yard then went out into the and as- than one proof The shows more tion.3 stick, room, got a came back into the and to rape. sault with intent up held appel- the stick over witness wife, lant’s but of never either one struck appellant contends the The also them it; Id., . . .” at 879. being acquittal doctrine of former bars already Paschal been for convicted rape convicted for assault intent aggravated growing the offense of upon acquittal rape. after the for He relies Hence, out of the this above-stated facts. 384, Florida, Simpson 403 U.S. 91 S.Ct. Court stated: 1801, 549 Ashe v. Swen (1971); 29 L.Ed.2d 1189, 436, transaction, son, “This is one 25 L.Ed.2d continuous 90 S.Ct. 397 U.S. Florida, U.S. contemplation within the 397 (1970); of 469 Waller clause 1184, 387, (1970). 435 Constitution which L.Ed.2d inhibits a second 25 90 S.Ct. general Multiple in Tex- For a treatment of Prosecution of this Doctrine (1968). Steele, as, similar doctrines 22 Texas see S.W.L.J. 567 162 He, 36.15, point ques- 36.14 or Vernon’s Ann.C.C.P.
Ashe, case most in our however, fundamental tion, col- contends applied the doctrine of federal authority to error that this has estoppel to the and said: so Court lateral states ground of unassigned error review simply “It that when an issue means 40.09, justice. of Article interest See of fact has once been determined ultimate 13, if the instruc- Section V.A.C.C.P. Even final that issue judgment, a valid erroneous, been the evidence may tion between the again litigated cannot be to- appellant than threats shows more any 397 future lawsuit.” parties same error, if ward so U.S. at S.Ct. at 1194. injure preserved, be calculated to would not See Article rights appellant. of Further, Supreme Court stated: error 36.19, fundamental No V.A.C.C.P. is shown. previous judgment acquit- a “Where verdict, upon general tal was based as complains, Finally, again appellant case, is usually approach requires error, court trial unassigned to ‘examine record of prior court allowing the committed reversible error proceeding, taking plead- into account the tes prosecutrix to on rebuttal the reiterate evidence, ings, charge, and other relevant gave on direct examination. No timony matter, and conclude whether a rational objection The matter is discre was made. grounded upon could have its verdict not fundamental tionary with an issue other than that which the de- Lee error. See fendant from seeks to foreclose consid- ” S.W. Id., eration.’ at at S.Ct. support is The evidence sufficient pled in this case former conviction. acquittal prior to trial. But no record of the former trial is this Court to before judg- error. The is no reversible There examine so we do not know what the ment is affirmed. jury grounded parte its Ex verdict. See Billy Ray Tex.Cr.App., Johnson, 472 S.W. ONION, J.,P. dissents.
2d Hutchings Tex.Cr. App., 466 Even S.W.2d 584. without MORRISON, J., part dissents record see we do not not how verdict of opinion carving. guilty in Williamson would determine issue pre of ultimate fact
cluding a verdict of guilty for assault with REHEARING MOTION FOR ON
Rehearing denied. also contends trial court erred when it ONION, authorized the Presiding Judge (dissenting). jury to convict him they found that he Ann.P.C., pro- Article Vernon’s did make an assault and did then and there *8 vides that: intend by threats to have knowledge carnal of the prosecutrix. upon He relies Milton assault a woman person shall “If State, v. 204, 23 Tex.App. 574; 4 S.W. rape, intent to commit with of offense Taylor State, 529, v. 22 Tex.Cr.R. 3 S.W. penitentiary in the be confined he shall 753, for proposition that the offense of two.” years not less than any term assault with intent to cannot be com (emphasis supplied) by mitted threats or fraud. ad mits objection that there was special no constitute an assault To requested required has burden by rape, Articles commit State
163 proving1 specific rape,2 intent to and said under the circumstances described in the by showing opinion burden is not satisfied original evidence submission. only possibility specific a mere int of such they appel- After had driven a while the Moreover,
ent.3 the rule has been that car, stopped placed gun lant to the commit there must be a neck, prosecutrix’s he had needed told her assault,4 rape accompanying the with a few hostage policeman as he had and killed showing stating cases be a there must necessary. kill her would her He tied very that the assailant intended “at the place and took ankles. This assault hands 5 7 6 time” or “at once” or “then and there.” County, and it this assault in-
Consistent with these authorities prosecution. which is the basis of this made charged dictment in the instant case prosecutrix asked assaulting prosecutrix his place might where he hide suggest a
“with the intent then and there to commit
car,
Wimberley
suggested
where
supplied).
and
rape.”
the offense of
(emphasis
thirty
drove the
They
she had once lived.
The court
in its
also instructed the
Marcos and then
from Austin to San
miles
charge as follows:
appel-
Wimberley.
a while
toward
After
cigarette, drank a
smoked a
stopped,
lant
warrant a
“To
conviction
the defend-
he drove
pills. Later
beer and
some
took
ant of an
assault with intent
commit
stopped
and
by
Backbone”
on “out
Devil’s
rape,
appear
the crime of
it must
from
beer,
he
some more
in a field. Here
drank
beyond
doubt,
the evidence
a reasonable
talked
pills and
first,
and consumed more
smoked
at the
defendant
time
her
asked
prosecutrix. Later he
place
indictment,
alleged in the
made an
to take
then told
rub
shoulder and
E-,
S-
It was
he undressed.
second,
clothing
off her
that the defendant then and
sodomy
oral
point that the act of
at this
there
had the intent
such assault
committed, and
was followed
threats,
defined,
as above
obtain
other acts
intercourse
the act of sexual
knowledge
carnal
of the said S-
These
opinion.
earlier
in the
described
E-without
her consent and
place
all took
sexual acts
against
supplied)
(emphasis
her will.”
case,
they
prosecutrix
In the
en-
instant
testified
tered the
hour before
request
car at his
after
one
approximately
field
Sergeant
had identified himself as
Reed
had.
relations were
first sexual
State,
(Tex.
;
(1938)
651,
1.
v.
House v.
Munoz
mission, “Q At all? above, present . .As noted in- No, “A sir. accompany
tent to must the assaul- no in tive action. If there was intent County later in anoth- Travis but it arose “Q you At the time County, left Travis county, properly not be con- er he could you any had you indication that intent in for assault to
victed going —that he was to have sexual rela- County.” Travis you, any tions with indication word or sign? requisite in order to find the In County majority opinion calls Travis the “A didn’t know. I testimony that prosecutrix’s to attention the just prior to she was to undress and told “Q Had he anything? said appellant sodomy, act of oral asked the going to any “had idea that No, “A sir. happen.” replied, presumed She I “[TJhat “Q anything he done that indicated Had was, any think of it that couldn’t I you he was about to have sexual rela- stopped why he have other reason would you? tions with me.” majority seized this con- has “A Not that I can recall.” County Hays in as evidence of versation evidence, agree that consid time of the assault cannot the appellant’s intent at the I pre- light ered in most to the prosecutrix’s the favorable County. verdict, jury’s shows than a mere sumption certainly more cannot be utilized requisite only the existence of the purpose. appellant’s possibility leaves such This intent, possibility in not suffi and this mere is directed while inquiry County, testimony did cient the conviction. Because to sustain never requisite in question had ref- evidence relied on show the clarify what “this” circumstantial, tent is it was to the act of erence to—whether strong suspicion proof amounting only undressing occurring, then which was sodomy probability is sufficient. act of followed or subse- mere not which every proof these. in this case does not exclude quent sexual intercourse or all of guilt of hypothesis except the reasonable testimony regard prosecutrix’s In this charged. Cul accused for offense highly significant. is on cross examination (Tex.Cr.App. more v. S.W.2d 915 1969). E-, every me sexu- “Q Mrs. tell al overture Douthit made to you Ken brief the out pointed As
Travis County, Texas. criminal present a brutal facts this case deprive transaction, not these facts do but “A None in Travis right State of his “Q you Did he put a hand on alleged ? in the indictment prove crime As agree. a reasonable doubt. beyond Yes, sir, “A he did. State, 91 Tex.Cr. said Robat v. fact 966 (1922), R. “[t]he up? “Q you And Is that correct? tie attributed conduct punishment can and merited was atrocious Yes, “A sir. establishing proof place not take rape.” elements of an assault not— “Q sexually, But he did *10 1fi5 for relied which of several acts State is direct evidence the record There propo not stand for following crimes conviction. It does tending to show that the sepa be tried and sition that could by appellant committed in of sexual rately for each act County: prohibited convicted (1) assault with ; 1151, Ann.P.C.) tercourse. weapon (Article Vernon’s 1148, (2) aggravated (Article Ver- I dissent. imprison- Ann.P.C.) ;
non’s false (3) 1169, Ann.P.C.). (Article ment Vernon’s MORRISON, joins in dissent. J., Further, is direct evidence there occurred in Coun- following offenses 1169,
ty: imprisonment (Article (1) false aggravated as- Ann.P.C.); (2)
Vernon’s 1148, (Article Ann.P.C.);
sault Vernon’s weapon prohibited (Arti- with a
(3) assault sodomy 1151, Ann.P.C.) (4) ;
cle Vernon’s (Article Ann.P.C.), (5) Vernon’s DAVENPORT, Appellant, Marcy Holmes rape Ann.P.C.). (Article Vernon’s of a The record also reflects evidence Texas, Appellee. The STATE of County Williamson for which No. 45045. acquitted. was tried and Appeals Court of Criminal of Texas. appellant in prosecute chose The State June charged offense re- the indictment and bound Rehearing July 26, Denied quirements regarding such of- laws agree fense. these I For reasons cannot rehearing
overrule motion for
and to affirm the conviction.
Further, grave have doubts as to I majority in
new rule established State,
overruling supra, and Cro Griffin State, supra.
means law as an returns to majority
nounced now purpose” principle
the “ulterior stated first McAvoy 41 Tex.Cr. dictum S,W. R. read the (1899). As I
majority opinion, there it is sufficient for coupled “present
to be an assault with a at future
intent” to the victim some e.,
occasion, to do a i. intention
future The law has been well-settled act. change Griffin,
since and see no reason
it now. further, Tex. Ledesma v.
Still seems (1944),
Cr.R.
have been
pellant’s regarding contention the State’s
right dealt to carve but one time. Ledesma question trial court whether the required
should to elect State