*1 859 jury’s finding support (See of pra, jury. would were even submitted to the 21.02, assessment of XIII, XIV, Wright, in parts my opinion Sec. supra, for rape, charged jury, supra.) Appellant because the in re- was neither turning charged verdict of of the with nor convicted of the commission indictment, sup- found facts 21.- constituting sufficient to an offense under Sec. acts port a pun- conviction Rape, 03, under that no supra, Section. that affixes and 21.02, supra, degree appellant Sec. is a second ishment offense for to the felony appellant and Ambers was entitled Punishment charged and convicted.1 range submission of that years, at outside ninety-nine was assessed (See ment to jury. parts XI, charged. paragraph should have been 1; XIII; XVI, my concurring opinion right to de- appellant’s. For violation dissenting in part in Wright v. beyond a reasona- pleading mand State, 859, decided.) S.W.2d this day from the re- doubt, and for deviations ble trial, a fair quired denying him procedure Instead range under Sec- reversed and the judgment should be 21.03, V.T.C.A. Penal for first cause remanded. degree felony was submitted. That Section defines aggravated rape and affixes a
ishment It requires thereto. for conviction
thereunder that in addition to showing com-
mission rape 21.02, Sec. supra, it
must be alleged proved beyond rea- sonable doubt that the accused in commis-
sion of the offense: “(1) causes bodily serious or at- injury WRIGHT, Ray Appellant, Darrell
tempts to cause death to the victim or v. another in the course crimi- of the same Appellee. Texas, The STATE episode; nal No. 49576.
“(2) compels rape by submission death, threat of bodily injury, serious Appeals of Texas. Court of Criminal kidnapping imminently to be on inflicted Sept. 1975. anyone.” 21.03, supra. Sec.
It is obvious allegation that no such
aggravating circumstances was made in the (See parts IX, XIII, indictment. my opinion in Wright, supra.) The verdict
“guilty charged in the indictment” there- fore does not constitute a finding proven,
circumstances were and none of the 21.03, additional fact issues under su- Sec. stranger logic employed by speak majority opinion, Even is that The author of 1. - case, majority if the in this which holds that ing Day the Court than reflects other evidence some offense (1975), S.W.2d - wrote: indictment, charged in the “. . . the dissent infers . . . been con- has charged victed, the defendant if the reflects oth- some offense permissible trial court for the it indictment, charged er than no then for the oth- charge on the lesser included of- instruction ignore shown in evidence er offense charged fense of the offense needs law to affixed raising regardless given of the evidence charged described the facts the offense strange logic This indeed.” the same. to be true. and found *3 Brown, Temple, appellant. Gerald M. Odom, Carroll, D. Atty., Dist. Bob Joe Yollers, Belton, Jim D. Atty., Asst. Dist. McAngus, Asst. Atty., David S. State’s Austin, Atty., State’s for the State.
OPINION
ONION, Presiding Judge. from a taken conviction for appeal is This Article 1183 of rape under statutory wherein former Penal Code imprisonment years’ was assessed at 30 appellant had elected after the Penal Code. presented on which was The indictment 23, 1973, alleged the offense occurred May May, 1973”. day of A.D. “on or about 10th 1974, 6,May after on The trial commenced Penal Code of the new the effective date proper resolu- 1974). (January Since grounds of appellant’s several around the fact error revolves date the effective offense occurred before con- and trial of the new Penal Code Saving thereafter, forth ducted we set the enactment accompanying Provisions particularly the new Penal Code error involved. grounds of applicable to the Provisions, Saving “Sec. 6. (a) Except requirement complaining witness provided (c) (b) Subsections years age be under and since the section, this this applies only Act rape of- offense of of a child under fenses committed (V.T.C.A., on or after its Section effective Penal date, and a an 21.09)requires criminal action for offense witness complaining that the committed 6(b), years before this Act’s su- age, effective be under 17 date governed existing agree. by the law pra, be- calls for We do dismissal. fore date, the effective law is 6(b), supra, con- to “conduct con- speaks tinued in effect provide as if purpose, stituting for this this does not an offense”. Act were not in purposes force. For the former section, is committed on into Code must be forward carried or after the effective date of this Act elements in if Code with same precisely any element of 6(b), the offense occurs on order to avoid dismissal *4 after the supra. effective date. carried Practically every offense language forward been has altered (b) Conduct constituting an offense un- many consist of elements and different existing der repealed by law is that this separate some have been into of- divided Act and that does not constitute an of- however, only 6(b), supra, fenses. Section fense under this prose- Act not be requires dismissal cases where in those cuted after the effective date of this Act. constituting “conduct the offense” If, Act, on the effective date of this a constitutes an longer the former Code no criminal action pending is for conduct State, v. 524 offense. See Rockwood that was an laws offense under the re- is clear (Tex.Cr.App.1975). S.W.2d 292 pealed by this Act and that does not appellant the conduct of Act, constitute an this .offense under the former constituted an offense action is dismissed on the effective date constitutes statutory rape also statute However, of this Act. a conviction exist- child of a stat- rape offense under the new ing on the date of this Act effective respect to issue Specifically ute. with conduct constituting an offense under prosecu- age, of it was uncontroverted repealed laws is valid by this Act age 17 of at time years trix was under purposes unaffected this Act. For of offense, age, of years 15 to-wit: section, finding means a ‘conviction’ respect rendering the “conduct” guilt jurisdic- in a competent court of both the old and prohibition within the tion, and it is consequence of no that the had prosecutrix If been new statutes. conviction is not final. question would years age, 17 a different (c) In a pending criminal action on or parte Ex presented. have See been commenced on or the effective after date Davila, 50,334 (Tex.Cr.App.No. delivered Act, of this for an offense committed 7/16/1975). date, before the defendant, effective Appellant’s is overruled. contention adjudged if guilty, shall be assessed ishment under this Act if he so elects by complains of the tri Appellant next written motion filed with the trial court the State’s al granting court’s action in before the hearing begins.” sentencing evidence prohibiting motion limine
Initially appellant issue of urges prosecutrix’s unchastity until court erred in refusing to dismiss the acknowl Appellant indict consent was raised. light 1183, ment in 6(b) V.A.P.C. Section above edges that under Article quoted Saving held that if Provisions. He advances repeatedly this Court has older the prosecutrix years since the offense of statuto is 15 contention show, ry rape 1183, V.A.P.C.1925, Article a accused in consent cases defense, includes as an previous element that offense chaste that she not of was
863 character, rape of a unchastity aggravated but that stitute the offense of no defense Code, to prosecution where there Penal is no child under V.T.C.A. issue allege he 21.03, did State, consent. that the indictment Esquivel See v. 506 S.W.2d by threat State, 613 (Tex.Cr.App.1974); compelled rape submission Lewis v. 500 kidnapping, death, bodily injury S.W.2d (Tex.Cr.App.1973); 167 serious Beshears v. State, with the forms submitted 461 verdict 122 (Tex.Cr.App.1970). S.W.2d assess Appellant charge permitted reasons that promiscuity sexual he had not for which ment for “conduct” V.T.C.A., defensive issue nature of been Penal indicted. 21.09(b) regardless whether Appel consent is made an issue. for the indicted appellant was perfected lant his claim for show review statutory Code offense former Penal
ing what he evidence would have offered. was rape. the offense he tried for This was We appellant’s find contention to be with effective after the date of the out By merit. virtue of the plain language Code, this was the offense which he 6(b) Provisions, of the Saving stage of the trial. was convicted at the criminal action in this case governed by was this case the circumstances of Under the prior appellant law. The charged appellant of the former remains convicted statutory with rape and was tried for that election to despite Code offense his written therefore, 21.09(b), supra, offense. Section Penal Code. under the new was not applicable appellant’s at trial. (Tex.Cr. Jefferson S.W.2d *5 Only recently State, in Pesch v. 524 S.W.2d App.1975). 299 (Tex.Cr.App.1975),and in McCarter v. elec- appellant written Here the his filed State, 527 296 (Tex.Cr.App S.W.2d . —deliv new Penal tion to be ered 7/16/1975), this court held that trial, of the commencement Code at the trial court did not err in submitting the to make this although required he was not defense of insanity under the law as it “sentencing hearing be- election until existed at the time of the commissionof the Provisions, 6(c), New gins” (Section Saving offense although the trial place took after Code, supra result of the Penal As a l.1 the effective date the new Penal Code. election, was con- written the trial court Appellant complains also penalty stage of the trial fronted at court’s action overruling objection his substituting the new with problem the court’s charge at the stage of the provisions for the old penalty Penal Code trial, since charge permitted jury rape which statutory Code offense of to find him of “conduct” which no guilt stage was convicted at the appellant longer January constituted offense after penal- of the trial. Evidence offered ground 1974. This of error is a different wit- ty the trial involved State’s stage of shading ground of the first of error and reputa- appellant’s testified that nesses who overruled for the same sub- reason. The law-abiding being peaceful a for statutory mission of rape by the court’s ap- stipulation citizen was “bad” and a charge was compliance in direct with appellant The pellant’s prior convictions. 6(b), dictates of supra. admitted that prosecutrix, who recalled
In grounds three appellant error com- year” prior of- a “less than plains that the trial court erred in overrul- act of sexual had committed an fense she ing objections his charge at at that time. boyfriend court’s with her intercourse the penalty stage trial, the evidence was since he It was proceed- not guilt stage indicted for “conduct” con- which would offered at phrase “sentencing 1. hearing” 42.07, The (Reasons prevent been sen- has V.A.C.C.P. interpreted penalty stage State, to mean-the tence). Stephenson 517 v. See contemplated by bifurcated trial as Article (Tex.Cr.App.1975). S.W.2d 277 37.07, V.A.C.C.P., rather than under Article ings charge trial court had to draft his court’s was error and the verdict charge at the have penalty stage of the trial in should not aggravation forms as to light of appellant’s election to be been utilized. ished Code, under the new Penal and varied set forth statutory scheme provisions relating rape. to the offense of quoted Saving Provisions above This charge court in its jury informed the found in the similar to that Penal Code is “rape for of a child” Act, Vernon’s Texas Controlled Substances was for a years term of less than two 4476-15, 6.01(a), Ann.Civ.St., Article Sec. nor more twenty possible than fine (b), (c), applied by the unanimous $10,000.2 not to exceed The court also in- State, 502 court in Jones v. S.W.2d structed jury involving (Tex.Cr.App.1973) to a case a nar- aggravated rape of a child was confine- prior cotic to the effective date years ment for life or term of not less statute.4 the above mentioned than ninety-nine.3 five nor more than appears clear court also instructed the what would Penal “Saving Provisions” aggravated rape constitute of a child under of a former Penal a defendant convicted provisions V.T.C.A., Code, Sec. commencing after Code offense in a trial
21.03. The verdict forms submitted were
1, 1974,
punished under the
January
will be
designed
to reflect whether the
so elects
if the
rape
aggravated
here
involved was
6(c) of the
writing
provided by
not.
appear rape
It would
of a child and
defendant,
“Saving
Since
Provisions.”
aggravated rape of a child would be the
discussed, remains
under the circumstances
“conduct” under the new Penal Code which
the old Penal Code
convicted of
would
equivalent
be the
the old
punished under
despite
his election
statutory rape
offense of
the new Penal
Jefferson
appellant was indicted.
merely
supra,
Legislature
it is obvious the
objections by
appellant
There were no
substitute, at his
him to
intended to allow
*6
portion
to that
charge instructing
of the
provi
option,
penalty
the new Penal Code
the
punishment
rape
as to the
of a
or “conduct”
sions for the same offense
V.T.C.A.,
Code,
child under
Penal
Section
variance
the elements
in
regardless of
21.03, and as to the verdict
forms sub-
Penal Code
between
in the old
the offense
mitted.
new
counterpart
equivalent
and its
Appellant
necessity of addi
urges that as he was not
the
indict-
Penal Code without
defendant,
aggravated
ed for
rape and the
that
the
indictment
to show
tional
thereof,
an old Code
allege
did not
having
the elements
the
found
been
V.T.C.A.,
Code,
21.09,
4476-15,
2.
Penal
Sec.
relates to
of Article
Sec. 4.05
ounces. See
child”,
“rape
felony
of a
which is a
the un-
supra.
from
The trial court
degree,
second
the
for which is
in-
amount
the
that
controverted evidence
provided by V.T.C.A.,
Code,
Penal
Sec. 12.-
ounces,
the
so
than two
volved was less
33.
B misde-
actually
a Class
became
offense
V.T.C.A.,
Code,
21.03,
3.
Penal
Sec.
relates in
between
the difference
meanor.
In Jones
part
felony
aggravated
child,
rape
which is a
provisions
Substances
the
of the Controlled
degree,
of the first
provisions
Article
Act and the
V.T.C.A.,
Code,
for which is fixed
Penal
observed, noting that
1925 Penal
were
Code
Sec. 12.32.
automatically required Article 13
4.
In
(Tex.Cr.
Jones v.
fendant is and told her “not to run off” because section slapped of the new Code must be deter- he her neck. He her would break times and when she mined from the if face several hand his over her by screaming, put started he provided makes the written election as up” mouth to “shut her and nose and told it never make back judge she “would Code. If the trial is to determine ear, got her back he punishment, town”. After he problem presented. no real raped hit and and then her slapped If her upon punishment, jury pass is to then passed fighting. while A car while she was judge the trial must determine from the prosecu- and the taking place the act was which section or sections of the new help, screamed for but the trix hollered and applicable, Penal Code are and to submit passing stop. appellant car did the case to the appropriate fifty sixty the car then made her drive sections of the new Penal Code. he feet road and then had another down the exactly This is what the did in They with her. then act of intercourse the instant and we find no merit case Salado, drove to station in a Texaco service appellant’s objections to the charge or the prosecutrix, left appellant where the use of verdict forms at the penalty stage of boyfriend. Ralph who Dr. Wal- called her the trial. lace, Jr., prosecutrix aft- examined who Lastly appellant contends the evidence had er the she support was insufficient the verdict of body, multiple “some on her bruises over rape aggravated was un- neck, arms, her I think on her back Code, provisions V.T.C.A., der the Penal knee.” under the back of one Section 21.03. We conclude evidence 10, 1973, The record that May reflects on child, rape of aggravated sufficient for C_A_R_ prosecutrix, compelled it prosecutrix shows the “skipped” friends, girl school and met two V.T.C.A., submit threat of death. See Linda Westbrook and Ray Carrie Herbert 21.03. See Ambers v. at Queen Dairy in Belton. There the (Tex.Cr.App 527 S.W.2d . —deliv girls Wright,5 met Darrell agreed go date). ered this to his house and sand his car. After work- error, judgment Finding no reversible car, ing on the the appellant purchased is affirmed. they some wine and went to a lake where passed Linda out from drinking wine. Sub- ROBERTS, (concurring). Judge sequently, Linda was taken home and Car- I reached only in the result got concur rie out of the car at courthouse. case, my reasoning, differs Court in this but prosecutrix, driving, who was offered embodied the other somewhat from that appellant drive to Salado and show the opinions. boyfriend they where her lived where they grav- had a wreck. When on the were outset, At the I the broad inter- believe occurred,
el
where the wreck
ap-
road
Saving
pretation
Provisions
given to
pellant
prosecutrix
stop
told the
concurring
his
Presiding Judge Onion in
*8
did,
up.
grabbed
back
When she
he
opinion
Legisla-
is the correct view.
dash,
keys and threw them on the
and when
give
ture
obviously intended
defendants
get
car,
prosecutrix
tried to
out of the
guilty
old Code
crime
got
grabbed
he
her and
her down in the
an
opportunity to avail themselves of
getting
seat.
succeeded in
out the oth-
sentencing provisions
She
more
lenient
door,
her,
er
appellant again
but
grabbed
interpretation
new
is consistent
Code. This
neck,
this
applying pres-
Saving
time around the
with
Provisions of
that of the
felony
reflected,
he was
in 1962 of
offenses.
age
appellant
convicted
5. The
is not
but
Act,
Controlled
(Acts 1973,
Substances
policy,
As a matter of
I also feel that
Leg.,
63rd
429).
Ch.
State,
Jones v.
hearings
complicated
ishment
should not be
S.W.2d 771 (Tex.Cr.App.1973).
applicable”
with aimless searches for “more
Legislature
offenses. The
did not intend to
In
State,
Jefferson v.
If were estab- exact the elements of which identity of elements of the old lished at stage and the evidence of offenses required, were Sec. 6(c) of the negated by new Code which was not otherwise uncon- very would have a limited application evidence, request troverted his should be which I do not think the Legislature granted. bar, appellant In the case at was intended. I therefore my- find agreement self in statutory rape convicted of under the old with Presiding Judge On- ion permits Sec. but showed that he em- sentencing under ployed Code for force and threats of violence and conduct which constituted prosecutrix was fifteen. The ele- the old Code. aggrava- ments of the new Code offenses of I agree cannot suggestion, with his how- rape rape ted of a child were thus ever, that review of questions should possibility appellant shown be on an abuse of discretion basis. Nor can negat- was not those offenses I countenance an interpretation of Art. 37.- ed uncontroverted evidence elsewhere in 07, V.A.C.C.P. which permit would the trial the record. It follows that the trial judge, or require him objection, submitting did not err in hear evidence at stage of a ranges at for these offenses trial on which new Code offense would con- stage second the trial. tain the applicable” “more sentencing provi- sions. 37.07(3), V.A.C.C.P., Art. precise ODOM, Judge (concurring part limiting evidence stage dissenting part). record, prior defendant’s criminal his general reputation, and his character. Con- majority’s I concur in inter- *9 trast provision 37.071(a). broad of Art. pretation Provisions of the Saving 1973, 6(b) elect, (Acts conviction Leg., 63rd ch. der Section
399, 6), 1, 1974, Section but for an offense com- January also dissent to much of after date, punished interpretation to be procedure and to the mitted before this which the concur that majority hold should be followed the new Act. I legislative in- punishment upon for holding correctly determination of states scope punished respect defendant’s of Section election to be tent with 6(c) 6(c). states 6(c). new Penal of language under Section The Section prosecu- code an old unconditionally that in variety The relevant factors which 1974, 1, not dismissed January tion after come play determining appropri- into defendant, if ad- 6(b), “the under Section ranges great, ate is judged guilty, shall be assessed and neither can nor should be stated in by written elects under this Act if he so opinion detailed elaboration in a single before the the trial court filed with motion Nevertheless, primary Court. fac- This all-inclu- sentencing hearing begins.” tors and an instructive outline of their rela- limit any intent to language sive belies tive roles can and should be made. Follow- be- 6(c). Legislature scope of Section ing the point statement of the on which I right of election stowed the concur in majority’s interpretation dis- not in each case upon the defendant 6(c) (part I), Section analysis and an 6(b). missed under Section points upon interpre- which I dissent to that (parts II-IX), tation attempt I to make procedure
such an proper outline of the for II. 6(c) case stage of a Section majority’s holding While I concur (parts XVI), and then demonstrate its X— 6(c), I scope respect with application XVII). (part to the instant case procedures decreed challenge judicially First, however, I wish the issue to state a defendant’s election for effectuation Court, now interpreting before this Although new Act. punished 6(c) 1973, 399, Leg., of Acts 63rd ch. is of right of elec- granted the Legislature application limited only and will affect class, Legislature tion to all within the small number Initially, of cases. those giving effect procedure did not create a 1, 1974, cases January tried after for of- conjecture to pure to such an election. fenses prior committed to that date are any regarding intent speak legislative aof affected. immediately, Less such cases as effectuating such special procedure saving are provision tried under some other simply did election, Legislature because the likely with the language same procedure. special provide See, by today’s g., affected decision. e. 1975, 341, Acts Leg., 64th ch. Sec. majority assert: 17(c). ch. Sec. Legislature it is obvious “. . . merely defendant] to allow intended [the
I. substitute, option, at his of- same for the Saving per- penalty provisions Provisions Code any vari- prosecuted regardless mits a after January fense or ‘conduct’ 1, 1974, between for an before in the elements offense committed ance equivalent its date to the old Penal Code elect with- new Penal counterpart new Code. The majority provision hold this proof to necessity additional “was intended out the apply to all cases where defendant, having been constituting ‘conduct’ an old Code of- show that offense, is guilty fense was of an old carried forward into a new Code the new Code holding every offense.” Under this defend- also require in and prosecution ant whose un- ‘conduct’ which not dismissed *10 itself proof of elements.” additional defendant is found has been convicted (Emphasis added.) ‘conduct’, offense or in a Penal Code problem no real substitution They also assert: is to judge If the exists. “Further, we that it was conclude uses the punishment, merely he assess clearly intent the Legislature only and penalties under the by virtue ‘Saving of the Provisions’ to equivalent the new Code. counterpart give the defendant in a criminal case punishment, the jury If is to assess right, cases, in some wait until range of jury that judge submits the penalty stage of a bifurcated trial and the new Penal Code. then cast problems additional plead- Penal “If several sections ings upon the State by his election to be or ‘con- type cover the of offenses punished under the new Penal Code.” Ponal Code for which duct’ under the old (Emphasis added.) convicted, ap- is then The majority make these assertions legis- plicable new Code must be section lative respect intent with procedure proof if the defend- determined from the punishment election, effectuation provid- ant makes the written election as they but cite no authority or evidence ed be any such legislative Contrary intent. judge is to the new Code. If trial majority, my opinion it is Legisla- that the punishment, problem no real determine ture, enacting expressed no presented. upon pass If a is to intent any special whatsoever proce- punishment, judge must the trial then dure followed, should quite be was but obvi- section determine from the ously silent on the whole matter. The fail- or sections of the new Penal Code Legislature ure of the provide any spe- applicable, the case to and to submit cial procedure for Section cases evi- appropriate sections dences an intent procedures, the usual new Penal Code.” so far as possible, should be followed. The procedure be, nearly possible, should as majority proposal The the same other ease. General first look statutes and principles of law should be followed and the compare old code statutes with new Code rights constitutional the defendant old code to determine whether the statutes should be accorded due respect protec- “equivalent” “coun- only statute or has one tion. majority’s (see proposal part III) the new terpart” provision in Penal does not conform to those proce- established if, instead, the new or “several sections of (see dures parts VI), and in that respect type IV— of offense Penal cover the violates Legislature’s intent as evi- statute Penal Code” ‘conduct’ under the old denced its silence on the matter. Nei- upon predicated. prosecution which the ther proposal does their protec- accord due case, majority direct If the latter is the tion of the rights of the de- taken, at which step a second (see fendant parts VII-IX). from the trial court must “determine
which section or sections of Following the one or applicable.” III. Code are be, the trial steps, two as the case majority set following out the proce- judge, is to be assessed if dure as the correct one for trial courts ranges of jury, then submits the follow a defendant’s election charge. in its punished under the new Penal Code: equivalent “Where the step I the first and the coun- flaws in both find terpart of the old require my Code offense for which step which dissent. second *11 the questions must be answered in
IV. both determination, a Upon such affirmative. above, As stated majority the direct the the guilty of the defendant is said compare trial court first to stat- Code offense he is not of the offense. But utes upon with the old code statute generally; guilty of the offense he is prosecution the was based to determine (or lesser charged of some in the indictment which statute or statutes of the new Code offense as submitted included applicable punishment range dictate the charge). ranges. majority The do not state why the predi- is punishment The assessment of old code compar- statute is the standard for range The of guilt. finding of upon cated a ison, and my opinion it is that it should not the jury, the submitted Instead, be. the trial court should deter- law, by is deter- single punishment affixed mine statute which new Code or statutes by determined the facts uppn mined the applicable are by examining the facts found reasonable doubt. jury upon a proof beyond by jury beyond the true be reasonable connecting link be- the is The indictment doubt, by as evidenced their of verdict the by jury the tween the facts found guilty and upon the indictment which the That by statute. punishment range affixed following analysis verdict rests. The dem- to the by statute punishment range affixed onstrates why this is true. the true is jury to be by facts found the A particular defendant is convicted for a is defendant the punishment range which “Offense,” offense. respect, in this has a jury. The to the entitled to have submitted dual meaning. The statute defines the of- of range what determination of fense, and referring to the statute violat- jury to the submission appropriate is ed the defendant is said to be convicted of have been upon what therefore rests offense, being generic. the “offense” A by jury. found the convicted defendant is also said to be con- prosecution The statute offense, referring spe- victed for the of a determination based is of relevance to him, by cific acts committed in this itas only insofar the meaning being is not “offense” used in the to a describ- affixes a generic, specific but in reference the set encompassing statutory ed events in the indictment and described true, being jury. This by the facts found by jury, beyond found the a reasonable be elected the has once doubt, to have occurred as so described. old new Penal ished under the indictment, instrument, The charging as the primary role no further code statute has alleges specific connects these two. It appropriate the determination conduct and describes it in such a manner ordinary case as in punishment. Just specific alleged compre- are acts laid beside jury are by the facts found is, generic hended within That class. range of what statutes to determine alleges indictment commission of affixed Legislature has acts in violation of a statute. been to have jury by the the conduct found question alleged The the facts of whether case committed, in a so constitute an the commission laid be- accusation of should by jury facts found question is a of law for the what to determine side statutes by courts. com- affixed question is answered been punishment has range have been paring language jury of the indictment with by the the conduct found in a is that language question statute. difference committed. The against statutes whether the facts are true is a the set case meas- by the are question jury, if of fact for the trial is which the facts statutes. jury, proven beyond a reasona- ured is the set of new must convicted, play no role ble Before an accused is The old Penal statutes doubt. stage process determining majority, proposal the The that the new appropriate range punishment. previously “proof” or evidence examine findings regard to introduced without The majority are therefore in error in the determine previously made scheme they have advanced. It is for this “section or sections himself which reason, instance, in the first that I dissent. on the applicable,” new Penal hand, in the law precedent other has no V. *12 cases, deprives the de- governing criminal pointed As was out in the above discus- removing the process by fendant of due (part sion III), the majority hold that in a issues from determination of crucial factual case where several new Penal Code sections appellate re- jury the effective and from are found to “cover type of offense” of view, him of the constitutional deprives which convicted, the defendant has been beyond a reasonable right to demand “the judge must determine from the doubt. proof which section or sections of the new further facts It is often the case that applicable.” Code are majority, The necessary to establish must than those stating test, in this intermingled have two range be ascertained before the of determinations. First question is the of may ment In such cases the be established. which new Code may applicable; statutes be of court must submit the determination second is range punishment of must charge present- jury those facts in a ultimately limit jury’s assessment of ing ranges in the alter- punishment of punishment. law, The first issue is one of native, enhance- with as is done in cases determined part1 by in comparison of the allegations. ment for mur- prosecution In a verdict and indictment with new Code guilt or der which of only submits the issue offenses as IV, demonstrated in above. trial, stage of the it is innocence at the first The second issue is one of fact in any case proper jury at for the court to instruct the where the answer to the first issue is that stage the second in the alternative on the more than range one punishment may ranges for murder with mal- apply. As an issue of bearing fact upon It is not ice and murder without malice. punishment, it must be by determined proper for the court to determine the issue jury any in case where jury is assessing upon of malice that determina- itself punishment, and by the trial punishment. by held submit one the majority.2 Not only must it be when Why any should the rule be different by determined a jury, it must prov- also be en the court unable to determine from the beyond a reasonable doubt.3 In this guilt stage respect, findings jury conclusions,first, that the court trial, applicable must which of more than one determine ranges which several limit apply should applied law to the facts as already by second, jury’s punishment? found jury, and, final assessment of the jury for deviat- majority must no reason beyond find further facts advance in ing applicable reasonable findings doubt from the rule they standard rights are by directed charge other cases. constitutional The same the ultimately controlling, single range adherence accused which demand punishment, cases, conformity that rule in and which are the with the other rule, laws governing trials, other criminal afford foundation for existence law, process due pro- applied also dictate that it be to Section tect the rights of the accused. cases.
1.The determination of which statutes 2. See footnote below. applicable may also be limited protection against jeopardy. double See parts XIV. 3. See VIH and part XV. When give there are elements in the new Code conceived to effect to a supposed legis- statute or statutes under which is without lative intent that foundation. In is submitted which are not part II, above, the facts pointed out that it was previously jury, their Legislature, granting defendants must charged right and found true to elect under the new before the operates new Code statute any special procedure did not enact affix a range punishment. effectuating scheme The ma- such an election. advanced the majority nevertheless, jority, hypothesized legisla- therefore in error for failure to respect submit to the any proce- fact tive intent with such issues that dure, determine which in the selections from their stated applies. ishment reason, It is for II, above, opinion quoted to-wit: instance, second I dissent. Legislature proce- intended that impose
dure no additional burdens of should necessary VI. pleading proof beyond *13 give offense. To old code conviction of the summarize, To there are two basic flaws intent, majority supposed effect to this procedure by majority outlined require- pleadings have removed the and for effectuation of a defendant’s election roles proof ments of established from their 6(c) Section punishment stage the criminal of new Penal Code. majority have not By doing trial. so the First, the majority hold the only prevented any addi- imposition of should compare the new Code statutes with upon pleading proof tional burdens and of the old Code statute under which the de- but have in fact removed fendant was convicted to determine which been demanded burdens as heretofore have provisions affix stage at the of State ranges Instead, to the offense. legisla- majority trial. Do the also assert Code statutes should compared with the proce- tive such established intent to abolish facts by beyond a reasonable requirements? dural doubt guilt stage, by as evidenced indictment, verdict and to ascertain VII. provisions may apply, as is done in all other criminal cases. majority’s Apart to the my from dissent application interpretation and of
Second, the majority hold that when 6(c) legislative intent and viola- upon based more than one new provision may seri- I have procedures, of established apply, the trial court should look to the constitutionality ous regarding doubts evidence to determine of interpretation application of their ranges should be submitted provision. short- that These constitutional jury. Instead, upon the issues of fact them, also a comings, perceive as I which rest the determination of which incorrect as- consequence majority’s ultimately control- previ- legislative intent as sessment of the ling should be submitted to the in an stated, ously any procedure for to-wit: charge, alternative as is done all other 6(c) effectuating an election under Section criminal cases where such an issue arises. impose burdens of should no additional Each of these characteristics of the ma- necessary for pleading proof beyond that jority’s procedure constitutes a radical de- (See conviction of old code offense. parture procedure from the usual in crimi- VI.) parts II and cases, nal accomplished and is by the action majority of this pleading Court with requirements proof neither constitutional nor legislative by the Consti- prosecution mandate. are cast appears proposed procedure Con- and the United States tution of Texas stitution, against except upon defendant. It is the accused conviction Constitution, defendant, and not every proof beyond a reasonable doubt necessarily places upon the State such addi- crime necessary to fact constitute tional burdens pleading as do charged.” with which he is arise in 6(c) Legislature cases. The under discus here The fact that the issues expressed no intent to protec- abolish such only to the determination sion relate tive requirements, as contended the ma- con punishment shall be what jority, nor given could such intent be them jury does not remove sidered effect to abolish those constitutional safe- requisite from the rule guards. must be the assessment of 6(c) Neither can a Section election rea- In the proven doubt. beyond a reasonable sonably be said to be a carte blanche know- - Wilbur, Mullaney recent case ing intelligent waiver of all constitu- U.S. -, 1881,44 L.Ed.2d 95 S.Ct. rights tional might which it be more conve- Supreme applicability Court considered the bypass nient to than to honor in the doubt standard of of the reasonable ment proper determination. It would be passion” in homicide issue of “heat hold that a defendant’s election prosecutions the law of Maine. The constitutes a waiver of some constitutional Court held: right only where assertion of the Section “Petitioners, of the Maine the warden right election is in irreconcilable con- Maine, argue that Prison and State flict with assertion of the constitutional . Winship should not be extended right.4 waiver, Absent such a every de- *14 They note a present case. that as fendant, regardless of whether he makes a heat of formal matter the absence of not, election or is entitled to the passion is not a provocation on sudden protections constitutional afforded ’ the crime of ‘fact necessary to constitute requirements pleading beyond and In re Win in Maine. felonious homicide a reasonable doubt. [1068,] 364, at ship, 397 at 90 S.Ct. U.S. (emphasis supplied). 1073 L.Ed.2d 368] [25 VIII. relevant, according to is This distinction In any case where facts other than those Winship the facts petitioners, in because found by at the stage must be to establish crimi at issue were essential ascertained before may be as- instance whereas the nality in the first sessed,5 the Constitution requires that into question in here does not come fact prove State those additional beyond facts a jury already has deter play until the reasonable doubt. The majority have not mined that the defendant is provided protection for of this constitution- manslaugh may punished be at least for right.6 al situation, petitioners main ter. In this Supreme Court in Winship, In re 397 tain, in interests the defendant’s critical 358,364, 1068, 1073, U.S. 90 S.Ct. 25 L.Ed.2d longer of liberty reputation are no 368, held: since, irrespective of paramount concern “Lest there remain any presence doubt about the heat of or absence of the constitutional stature of the he is like passion provocation, reasona- on sudden standard, ble-doubt explicitly ly we hold certain liberty to lose his that the protects short, Due would petitioners Process Clause stigmatized. In part XIII, 4. See majority opinion below. author of in filed Kelly 467, v. Tex.Cr.App., 483 S.W.2d part V, above, XI, 5. See below. 481, language in which much 473 — found 6. I majority’s do not understand the failure origins describing for and reasons provide protection right, to of this valuable proof. requiring high standard such a particularly light lengthy in dissent 874 Winship which,
limit those provide majority protection if not fails to proved, wholly would exonerate the de- right.7 of this established fendant. instance, reason, is for in the third this I dissent.
“This analysis recognize fails to Maine, criminal law like that jurisdictions, other only is concerned not IX. with guilt or innocence in the abstract cases, alleged In certain the facts in but also degree with the of criminal cul- indictment, by the true be- and found pability. has Maine chosen to distinguish doubt, yond will constitute a reasonable those who kill passion heat of from statute, code the old those who kill absence of this fac- provision comparable but also under a tor. Because the former are less ‘blame- situation, it In such a the new Penal Code. worth[y],’ Lafferty, Del., State said that the new Code may accurately be [647,] A.2d (concurring at opin- provision affixes ion), they subject to substantially less which the accused was offense for penalties. By severe drawing this dis- IV, above.) When (Cf. part found guilty. tinction, refusing require while so, facts need be no further prosecution to beyond establish a reason- guilt stage, than those determined turns, able doubt the fact which it order ascertain Maine denigrates the interests found crit- ment submission to the appropriate ical in Winship. election, jury upon and the a Section “The safeguards process of due are not of that to submission is entitled unavailing rendered simply because a de- by the new affixed termination already have been provision the facts reached stigmatize that would the de- beyond reasonable proven indictment and might fendant and signifi- lead to a doubt. cant impairment personal liberty.” on certainly to be held to be The State is In giving to a effect defendant’s election Saving Provisions’ authoriza- notice of the new Penal *15 punished under the tion to the to be accused of which pen- determination of several a new cases where it affixes Penal Code in alty ranges apply, upon may the basis of charged. offense finding additional facts which will establish consistently which that when new It has provision Code been held affixes a of punishment committed, facts not in the bare upon to the conduct relies State must upon description penal- the basis of offense to secure finding such controlling facts statute upon beyond a rea- ties other affixed than those indictment, sonable doubt. The scheme in the those alleged advanced majority 7. The punishable degree state that when felony. several new as a first A de- prohibit Penal Code sections conduct of the sodomy the old under fendant convicted type same as the Penal offense for old 1974, 1, January Penal Code in a after convicted, judge which a defendant pro- upon punished under the election to be appropriate, determine which section is may expect, visions of the and submit under majority, holding jury. that section to the Consider this situa- misdemeanor or for the lowest 524, (1925), tion: Under Article V.A.P.C. solely felony, depending highest non-capital penalty sodomy years. was two to fifteen appro- determine is on what Code, Under the new Penal Sec. 21.06 priate, subject review of whether punishable makes conduct a homosexual support any that deter- there is evidence misdemeanor; Class C Sec. 21.07 makes majority require sub- mination. The neither public punishable lewdness a Class A jury (see mission of the fact issues to the misdemeanor; 21.04 Sec. makes sexual V, determining above), nor punishable degree felony; abuse as a second beyond facts a reasonable doubt. aggravated Sec. 21.05 makes sexual abuse
875
Constitution;
State,
v.
su-
Sullivan
alleged
other facts must
in Texas
themselves be
State,
pra.
128
indictment. See Dunn v.
229,
Tex.Cr.R.
cle
V.A.P.C.,
Sec.
the indictment
restricting the
majority,
instead of
must inform the accused of the basis of the
where
pleadings in those cases
to its
State
State’s claim for
punish
enhancement of
there-
verdict rendered
the indictment and
State,
ment.
Tex.Cr.App.,
See Aranda v.
predicate
on are a sufficient
221, 224;
506
State,
S.W.2d
Gomez v.
for assessment
30,
Tex.Cr.R.
These flow from examination is an appropriate procedure Saving the Provisions and right constitutional of the accused to language above, explained know and the nature cause of the accusa- legislative intent. As 10, every defend- against I, him. Article Legislature Section intended 1, ant tried January after an of- included offense. The indictment fense committed before that date has the than those alleged not have facts other right, 6(c), trial, Section to elect to be guilt stage submitted at the punishment assessed under the new only punishment. relevant on the issue of (see part I). regard pro- Thus, With judge the trial will be confronted cedure that a trial (1) court should a verdict of observe with one of four situations: following election, however, indictment, such an no with guilty charged in the as Legislature special provisions. made no al- bearing punishment further facts on Legislature’s indictment; question (2) silence on this a leged in the verdict of offense, should be taken as indicative of an with no guilty intent for a lesser included that the procedures requirements usual al- bearing punishment on further governing punishment indictment; hearing (3) leged a verdict in the case, indictment, other possible, so far govern charged should in the with guilty as in a 6(c) Section punishment proceeding bearing on al- additional facts (see part II). indictment; (4) determining proce- In a verdict of leged what steps followed, offense, dural should be with respect due included a lesser protection also bearing must be accorded the on al- additional facts rights constitutional leged defendant. in the indictment. would be unreasonable to assume that a situation, judge In trial the first defendant upon making a Section elec- jury by found should examine the facts tion also knowing intends to make a doubt, by evidenced beyond a reasonable intelligent waiver pro- of all constitutional indictment, and submit verdict'and (see part VII). tections proper It would be by the statute affixed to hold that such an election constitutes a encompass- defining statutory right waiver of a where ing described prohibiting conduct it is right obvious that is in waived IV, 4). paragraph by (see part those facts irreconcilable conflict with the assertion of To found look to other facts not 6(c) right Section to elect beyond a reasonable proven have been (see XIII). part right the defendant’s doubt would violate These, then, are the conditions that require the sustain its burden State to 6(e) punishment hearing procedures (cf. part proof beyond reasonable doubt a satisfy: (1)
must procedures the same that VIII; part XIV). to facts see To look govern other apply, except cases shall would violate the in the indictment (2) application when procedures of those put and to right defendant’s to notice operate case deprive IX; (cf. part pléading State to its burden right, pro- of a constitutional XIII). see / cedure must be altered to the minimum situation, In the second degree possible protection to accord of that should examine the facts right, provided, however, (3) when the doubt, beyond a as evidenced reasonable assertion right of the constitutional is in indict- portion of the the verdict and that irreconcilable conflict with assertion of the guilty of ment which the verdict 6(c) right, the assertion of the latter predicated, the lesser included offense protections waives the of the former. af- and submit the
For explanation greatest ease of and clar- defining statutory the by fixed the statute ity, this analysis will take as its model a offense encompassing prohibiting and the case stages by jury. by where trial at both by the facts so found conduct described procedure The punishment stage at the (see IV, 4). of jury part paragraph the Once the usual case is the guilty clear. A verdict of or to direct again, to look elsewhere returned, has been the determining either for the jury to look elsewhere charged in the violate the de- range punishment indictment or for a lesser would of rights fendant’s provides any constitutional as above determine whether the law Also, inject stated. to joining into punishment range the determina- for facts special tion of proper range the but punishment, already found with those those by submitted, either by yet to judge consideration the or in- not and also determine struction to found adverse jury, any some fact al- whether of the facts issue acquit- ready implied adversely by determined the to the evidenced by the State offense, incompatible the are jury’s implied greater tal of the acquittal greater of the If charged yet not submitted. allegations with the offense would violate the defend- case, there is no ant’s is not the the former protection against dou- by range punishment affixed (see ble XV). alternative jeopardy part law, sub- need not be allegations and the In the third situation, the judge trial will case, latter is jury. If the the mitted to the be required to submit ranges alternative (see part jeopardy double would violate it punishment to the jury along with further which, XV) by their those issues submit issues, fact requiring proof beyond a rea- verdict, found prior jury impliedly has doubt, sonable upon the answers to which (1) Only if the law adverse to the State. the jury will be directed to single, ulti- range for provide special punishment does mately controlling range punishment. of- included joining a situation the lesser The fact issues be submitted fense already found with will be by determined allegations in the allegations (2) acquittal of ranges indictment. One of the implication pre- by greater does ment determined, will be as in the first allega- finding clude a that the above, situation by discussed examining the judge true, tions be autho- will the trial facts by found jury guilt stage. pun- ranges of rized to submit alternative Any other ranges be sub- event, alternative ishment. In such those mitted in the alternative will be found ranges along with will submitted further be hypothesizing findings adverse de- for issues of in the manner described fact fendant on fact issues to be submitted previous situ- the third situation. As in at this stage, ascertaining range described, for improper ations it would ranges affixed the statute or statutes de- judge the trial to look elsewhere than making the conduct or conditions described scribed, elsewhere, jury or direct to look by those hypothesized object facts an or to make reserved to the a determination Again, criminal law. previous two jury, procedure here in the execution of the discussed, situations judge trial described. look elsewhere than stated or to direct the processes state above described to look elsewhere for the purpose of procedure simplified the basic fol- form ascertaining controlling ordinary ease determina- ishment lowed in would be improper and a violation ranges tion of what the constitutional rights of the defend- jury. ant. basic should be submitted improper would also be for the trial procedure typical situation starts judge in each determine controverted issue verdict, the with examination punishment allegations of the indict- indictment, prohibiting and the statutes ment such determination submit affixing ranges of conduct and one punishment (see V, pro- prohibition. This 2). to violation of that paragraph cedure, possible, so should also far In the fourth situation the trial followed in cases. required also be to submit alternative ranges punishment. First he must ex- XI. amine the already allegations step applying indictment In the first of the usual were case, reserved for punishment stage, procedure in a Section
judge should ascertain whether the facts in elements tions of the new Code offenses found by guilt stage consti- from the old code offense render the facts tute an offense provi- comparable under a by determining guilt in sion of the new Penal Code. If there is the old code to direct offense insufficient provision such a judge pro- then the should judge range controlling the trial ceed, case, as in the usual to submit the punishment under the new Code. Conse range by provi- affixed proce usual quently, a deviation from the sion.8 If the indictment in such case also required is to dure is if the defendant be alleges further facts not submitted at the assessed the new Code. guilt stage but bearing punishment (e. on g. If, allegations addition, in enhancement prior conviction), should as- indictment, are same contained in the certain whether there provision is a paragraph procedure as outlined in the first new Code under finding which a that such part of this determine should be followed allegations are true would affix a different allegations such on range whether fact issues punishment. If there is such a provision, should be then submitted. range should be alternative, submitted in the
along with the issue of fact and instructions XII. on range which ultimately will limit the jury’s assessment punishment, contin- part It be seen the discussion can from gent upon jury’s determination of the jury at by XI if the facts found fact issue. under a guilt stage an offense constitute compara- provision of the new Penal If, in applying step, the first the trial which the ble to the old judge determines that no new Code offense convicted, no there is deviation defendant is shown facts found at the Only case. procedure the usual from the stage, then it is obvious that before a such of- if the facts do not constitute may be said to be affixed from the fense must there be a deviation the new Code to the constituting conduct trial court procedure usual by which offense, further facts must be found. provisions comparable must ascertain which Several new Code provisions may affix the form of fact should be submitted ranges punishment, but the determina provi- comparable predicated issues on of which must cannot control protec- affords procedure sions. The usual facts, made before further neither rights, tion of the constitutional defendant’s nor, the indictment9 yet, established required deviate but when the court is beyond doubt,10 a reasonable are estab procedure, from that the deviations lished. In such a situation the trial court with examined cause for deviation must be must determine comparable provi constitutional care to insure those sions applied11, and therefrom it unless can rights respect are accorded due ranges may apply, and has been made. be said an effective waiver alternative, submit them in the appro with which now must rights Those priate jury, upon instructions which the the deviation be discussed in determining relation the additional fact issues sub right mitted, procedure will be from the usual directed to the correct right punishment. pleading by demand is this situation that doubt, requires deviation procedure from the a reasonable proof beyond fol demand case, jeopardy. lowed in the usual double because the varia protection against and the part part 8. See IX. See 10. XIV. part
9. See XIII. 11. See XV.
879 upon indictment, XIII. a valid old Code to which affixed, punishment no new upon is All facts essential ato determination of punished election to be new Code appropriate range punishment of must any objection waives lack of in notice be (see part IX). the indictment essential indictment of those facts to a These pleading requirements flow from the range new determination of what of right of the accused to know punishment ultimately jury’s limit the will the nature and cause of the accusation punishment. assessment of against him and be referred to as the right to The limit pleading by demand first alternative would State. Ar- I, 6(c). Constitution; scope ticle application Section Texas of of Section Sul- however, livan v. states supra. language provision, of that unconditionally that in a saved old Code indictment, When the alleging an of- defendant, prosecution, adjudged “the if fense Code, under the old Penal does not punishment guilty, shall be assessed under, allege constituting facts an offense this Act motion if he so elects written Code, the new Penal the verdict of a filed with the trial court before the sentenc- finding the guilty charged ing hearing begins.” Such all-inclusive lan- the indictment does not constitute a suffi- guage scope belies intent to limit of cient finding of facts to enable the trial 6(c). (See part I.) Section court to ascertain range what of ment should jury’s control the punishment alternative, on the other The second deliberations 6(c) after a hand, 6(c) election. renders a election The defendant and the State alike have right require automatic waiver of to available at the case, commencement of plead plead- trial the State to its whenever the indictment, from which this ing, although adequate support circumstance of indeterminancy of range punishment verdict, inadequate is for determina- can readily recognized. prosecution, be controlling range punishment. regardless of the election punishment, right is If a to de- defendant stands on his offense; the old code guilt is pleading, only deter- mand is to alternative solely mined upon the elements deny punished of the old his election to be under the offense; code conviction, and the Code, if one be punishment and assess had, is for the old code (Jefferson purpose v. old for which the indictment State, Tex.Cr.App., 519 amply adequate right is 649). S.W.2d and the demand upon If a Section If, election a range pleading well satisfied. on the other of punishment is not hand, attached automatically punished a defendant does elect to be upon the basis of the stage findings despite under the new Code the failure of fact, it is clear that range no charge the indictment facts to which a may be affixed absent further findings range affixed, new Code facts. Nonetheless the indictment is suffi- thereby give him notice of what fur- cient support the verdict guilty. proved This ther facts in the course of set of presents circumstances the following establishing what alternatives: either no controlling, election it can be said that may be made defendant, case, because the valid old Code in such a has waived his conviction a valid old Code right indictment to demand such pleading facts. has no corresponding new Code of The conflict of his irreconcilable election to thereto, or, affixed be punished defend- under the new Code with the ant, in the face of an right old Code conviction pleading demand such a case If, hand, 12. on the other does the new Code right may waiver of this constitutional such affix a inferred from an election to be provision affixing range. jury upon guilt stage, such no arises, such no irreconcilable conflict 593;
leads to the
conclusion that
an election Tex.Cr.App.,
509 S.W.2d
Turner v.
*20
State,
243,
waives that
right.
Tex.Cr.App.,
constitutional
upon
518 S.W.2d
States,
authority of Green v. United
355
XIV.
184,
221,
(1957),
U.S.
78
199
S.Ct.
2 L.Ed.2d
323,
While it is
in
Georgia,
true that
cases as above
and
Price v.
398 U.S.
S.Ct.
(1970), that
described irreconcilable conflict leads to the
dures, they are are the result of ment charge: XI, diagram questions paragraph part of law 2. 13. The shows See 15. prepar- trial must be decided ing XI, part paragraph 16. See 1. factors, charge. Other part 17. See XV. any evidence rais- whether there is such ing part XIII. 18. See course, issue, must, given also due consideration. part XIV. See 19. part 14. See XII. part XIV. 2tt. See XVII. CASEY, Appellant, Christopher Woods The simple procedure above outlined will
now be applied to the instant case. Texas, Appellee. STATE Appellant was statutory indicted for rape 50076. No. the old Penal and found guilty of “rape in the indictment.” Be- of Texas. Appeals of Criminal Court cause of legislative changes compara- 23, 1975. Sept. ble vary new Code offense which from the alleged by the indictment and found by the jury, the question first before the appellant’s court
election (See must be answered “No.” XVI.) Comparable provisions new Code this case Rape were (Sec. 21.09, of a Child
V.T.C.A. Code) and Aggravated Rape *22 of a (Sec. 21.03, Child Code). V.T.C.A.Penal
Submission of neither of these would vio- late jeopardy double and both should have
been submitted.
Appellant contends the trial court erred in submitting Aggravated Rape Child, of a should have Rape submitted of a Child, he because had not been indicted for conduct constituting aggravated rape. objections
These urged by appellant are equally true with respect charge on
Rape of a Child because constituting that offense also were not objection,
indictment. The valid, if would preclude submission of any pun- new Code
ishment range. Because pun- no new Code ishment range affixed to the conduct i^ described the facts found by jury,
can be by all, seen election to be ished under the new in such a situa-
tion, right waives the to demand pleading
of the additional facts constituting Aggra-
vated Rape aof Child Rape of a Child.
(See part XIII.) The trial court committed no error in overruling appellant’s objections to the charge. this case the affirmance
I concur endorsed procedure but dissent to majority.