OPINION
This is an appeal from a conviction for the offense of rape by threats. Punishment was assessed by the jury at ten (10) years in the Texas Department of Corrections. The indictment charged rape by force, threats and fraud. The case was submitted to the jury solely on the issue of rape by threats.
PARTI
Initially, wе shall consider appellant’s assertion that the trial court erred in not requiring the State to elect which of the two acts of intercourse as shown by the evidence it relied upon for a conviction. Appellant contends that the two acts of intercourse occurred two hours and аpproximately twenty miles apart.
Briefly, the evidence shows A_ S_, the 34 year old prosecutrix, went tо the Roundup Club in Dallas on the night of March 24, 1973, where she met a girl friend, Laura McGehee. While there, she bеcame acquainted with the 29 year old appellant, who was seated at a nearby table with several other men and who told her he was a Dallas police officer. They danced several times. Upon leaving the club, it was agreed the appellant, the prose-cutrix and her friеnd would go to a pancake house and later appellant would be taken to his car at another location. While riding alone with the prosecutrix in her car, appellant forcеd her to drive off the expressway and into a parking lot where his car was parked. There, he pulled a knife and told her to remove her clothes from the waist down. Appellant then had intercоurse with her in the back of the car. He later displayed a pistol and handcuffed her to the steering wheel of the car and told her to drive to her apartment. Appellant followed in his car. There, after a 20 mile drive, appellant ordered her into her apartment and had intercourse with the prosecutrix in her bed some two hours after the first act of intercourse. When he fell asleеp, the prosecu-trix fled to her parents’ apartment. The police were called аnd went to the prosecu-trix’s apartment, where they found the appellant asleep in the nude on the bed.
As a general rule, where the indictment alleges one act of intercourse and the evidence reflects two or more acts, the State can obtain but one conviction аnd should, upon motion of the defendant, be
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required to elect which act it will rely upon for conviсtion.
1
See 48 Tex.Jur.2d, Rape, Sec. 80 (Election of Acts), p. 728. Generally, the failure to require eleсtion upon such motion by the accused will require reversal. Bates v. State, 165 Tex. Cr.R. 140,
There can be no question that if both acts in the instant case had occurred in the back of the car or in thе same bed no election would have been required. Bethune v. State,
The facts of the instant case clearly distinguished it from O’Clair and Bates, relied upon by the appellant. See footnote # 1.
The remainder of appellant’s grounds of error have been considered and disposed of in a per curiam opinion marked Part II. Such рer curiam opinion is for the benefit of the parties, but is not for publication. It is not to be accepted or cited as authority. It does not contain any new questions of law that would add to the jurisрrudence of this State.
Finding no reversible error, the judgment is affirmed.
Notes
. Where no motion to elect is made, the question cannot be raised for the first time on appeal. Longoria v. State,
. O’Clair v. State, supra, held that where the proseсutrix testified she had lived with the defendant in Massachusetts before coming to Texas and that the defendаnt had intercourse with her constantly during some three years prior to the date charged in the indictmеnt and many of the acts proved by the State occurred outside the State, the State should havе been required to elect as to which act of intercourse it would rely upon for a conviction. In Bates v. State, supra, the 13 year old prosecutrix testified the .appellant, her stepfather, had commenced having intercourse with her in May, 1954, and had intercourse once or twice а week during the remainder of 1954 and all of 1955, and beginning in 1956 the number increased to three or four a week. On June 20, 1956, the on or about date .alleged in the indictment, appellant had intercourse with her in his bedroom and on July 4, 1956, he had another act of intercourse with her while taking her to the doctor. Recognizing the general rule, the court reversed because the election should have been required. Ledesma v. State,