*1 (3) force, threat, (4) causes or fraud commission of of compelling prostitution. analogous situation, For an prostitution. another to commit see (Tex.Cr. Earl v. alleges: The indictment App.1974), where the was indicted specific “... then and there with in- aggravated robbery and on to of compelling tent commit the offense argued the indictment should have prostitution, knowingly intentionally, of looking elements theft. In at the force, fraud, attempt threats and to case, indictment in instant we find that another, namely, cause Barbara Fawn required culpable state is prop- mental Anderson, complainant, hereinafter called Thus, erly alleged. appellant’s second to commit prostitution, to-wit: the said ground of error is overruled. complainant hit the said with error, In ground appel his final of attempt his hands in an to cause the said complains lant the trial court con prostitution, commit said sidered evidence outside the record. After amounting prepa- act to more than mere testified that he had been ration that tended but failed to effect the watching a pre-season Cowboy Dallas foot intended, of commission the offense ...” game ball July on the trial court Reading whole, the indictment as all of stated: the constituent necessary elements to an “THE Let ask you, COURT: look attempted offense under Penal here, Davis, Mr. let you me show what Code, 43.05(aXl), alleged. Section are ais 1977 schedule of the Dallas Cow- Clearly, alleges indictment sufficiently boys. game It shows the on first Au- force, threats, with, gust 6th attempt compel fraud com- (interposing) “THE DEFENDANT: San plaining prostitution. witness to commit Diego. Appellant’s ground first error of is over- right. “THE All COURT: Look at all ruled. those dates. appear Does that to be the schedule?” error, ground

In his second of objection No argues the on this or any grounds indictment fails to other allege the urged was nothing trial court and secondary culpable required mental state for review. Crocker v. prostitution. V.T.C.A., the offense of S.W.2d 190 (Tex.Cr.App.1978). Appellant’s Code, 43.02(a), Penal provides Section ground fourth of error is overruled. following: is affirmed. “(a) A person commits an offense if he knowingly:

“(1) to engage, agrees offers to en-

gage, engages or in sexual conduct for fee;

“(2) solicits another in a public place to engage with him in sexual conduct for Joseph BELLER, Appellant, Alex hire.” that, such, Appellant argues as the indict- fundamentally

ment is defective. Texas, Appellee. The STATE of above,

As noted was in compel for attempting prostitu dicted of Appeals Court Criminal of Thus, only tion. the elements of that of Panel No. 3. fense, attempting compel prostitution need be set out in the indictment. There is no prostitu need to set out the of elements

tion. The actual commission the offense prostitution prequisite not a to the

740

The appellant asserts the evidence is the insufficient because State failed to allegedly the was a prove deadly knife deadly A is not weapon. weapon knife a State, se, Limuel v. per 568 S.W.2d 309 State, (Tex.Cr.App.1978); Windham v. 530 therefore, (Tex.Cr.App.1975); S.W.2d 111 proof must that the knife was a there be State, Williams v. weapon. deadly 575 (Tex.Cr.App.1979). S.W.2d complainant was The a route salesman distributor; thought ap- a beer the for he ignition keys pellant had taken the from truck, delivery so he went into a was- the was, appellant and hateria where the asked complain- the The key. return testified after words were ant that some exchanged, “reached the the pants his he side of and had a knife —about pulled time knife [appellant] a and the kick in started to hit me in face and my the groin swing the and knife in face.” helper The and his ran into a nearby shouting convenience store for weapons to defend The appel- themselves. lant came the door of the convenience store and then left.

Dorothy employed Former who was the at the convenience store in which com helper refuge and his testified plainant took Ross, Houston, Philip for appellant. S. hand, in “the appellant’s she saw the end of of something sharp—I a blade. The end Holmes, Jr., Atty., John B. Dist. Michael — sharp object a in his it saw hand.” She said Balderas, Jr., Kuhn, Asst. C. and Antonio and it have a knife. On shined been Huttash, Houston, Robert Attys., Dist. cross-examination she said had Austin, the Atty., State. State’s in she something his hand didn’t know what ODOM, it was. DALLY and McCOR- Before

MICK, JJ. complainant’s helper The was not called testimony

as a witness. No other concern- ing the knife was offered. Neither the OPINION helper were cut. complainant nor The DALLY, Judge. and knife was not offered evidence there This a conviction for is an from the knife its testimony describing is no assault; pun- aggravated The is wholly size. evidence insufficient years. imprisonment eight ishment deadly weapon, therefore the must be reversed. urges State, jury’s verdict. (Tex. “inten- Cr.App.1979) upon It was that the did is cited and relied State; tionally imminent knowingly threaten there the knife used was described Rollo, knife”, knife,” a bodily injury “long Jr. with as a “butcher bladed Robert “knife six namely, use of knife.” had a blade five or inches deadly weapon, long,” placed knife had been

against complainant’s throat and the told her her would cut throat.

Hart (Tex.Cr.App. 581 S.W.2d 675 Cruz v.

1979); (Tex. 576 S.W.2d 841 State, supra, Williams v.

Cr.App.1979);

also cited the State are less

its contention than is

supra. judgment is reversed and cause is

remanded.

McCORMICK, J., dissents.

ODOM, Judge, concurring. majority’s reasoning

I concur in the

conclusion that presented the evidence at

trial

deadly weapon under Penal Code 1.07(a)(ll). however,

Sec. I agree, cannot

that this supports disposition conclusion

of reversal and remand.

Under the only jury

verdict a properly have returned v.

was not guilty. Under Burks United

States, 2141, 1, 437 U.S. S.Ct. L.Ed.2d Greene v. Massey, 437 U.S. 19,

98 S.Ct. 57 L.Ed.2d the proper

disposition of entry to order acquittal. CARDONA, Relator,

Victor MARSHALL,

Honorable Marvin F.

Judge, Respondent.

Court of Criminal Appeals of

En Banc. Rohde, Tulia,

Stephen L. for relator.