Rubio v. State , 1980 Tex. Crim. App. LEXIS 1374 ( 1980 )

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape. V.T.C.A. Penal Code, Sec. 21.03. After finding appellant guilty the jury assessed punishment at 99 years.

The prosecutrix testified that in the early morning hours of February 22, 1975, she was alone in her car traveling on the Gulf Freeway in Houston. Appellant was driving a truck in the next lane and began honking at her. She was startled and drove over the curb onto the shoulder of the highway. Appellant pulled onto the shoulder in front of her automobile, exited his vehicle and approached her window. He told her that she had a flat tire. When she stepped from her car appellant seized her by the arm, pointed a pistol at her and said, “You are going to do what I want or I will shoot you ... Come with me.” He then placed her in his truck, drove to a field and raped her.

In addition to the evidence from the pros-ecutrix, the State, over appellant’s timely objection, offered in its case in chief the testimony of D_H_This witness testified that at about midnight on February 21, 1975, she was traveling alone in her car on a road located about two or three miles from the Gulf Freeway. A truck in the next lane appeared to be trying to push her car off the side of the road. She pulled onto the shoulder as did the truck. She testified appellant exited from the truck, came to her window and told her that she had flat tires. When she rolled the window down he pointed a pistol at her and said, “You are coming with me.” He grabbed her, struck her and attempted to place her in the truck. He demanded that she remove her clothing. A struggle ensued during which she was beaten severely and shot three times. Cross-examination of the witness tended to show that appellant, in addition to the acts testified to on direct examination, attempted to rape D— H-

Appellant took the stand and admitted having sexual intercourse with the prosecu-trix. However, he asserted “consent” as his defensive theory to the offense charged. When the State attempted to cross-examine him concerning the extraneous offense, he refused to testify.

In its charge to the jury, the court limited consideration of the extraneous offense to the issue of intent.

In his first ground of error appellant contends that “the trial court reversibly erred in allowing evidence of an extraneous attempted rape of another female which occurred at another time and place from the alleged rape of the complainant, in the absence of the complainant.” He maintains that the evidence of the extraneous offense was inadmissible on the issue of intent and that it likewise was not admissible to show lack of consent on the part of the complainant.

The State contends that evidence of the extraneous offense was properly admitted to rebut appellant’s defensive theory of consent. The State argues that the extraneous offense tended to defeat said defensive theory in that it showed an intent to have sexual intercourse with the prosecutrix by means of force and threats.

It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Christiansen v. State, Tex.Cr.App., 575 S.W.2d 42; Hines v. State, Tex.Cr.App., 571 S.W.2d 322; Cameron v. State, Tex.Cr.App., 530 S.W.2d 841. The exceptions to the rule against extraneous offenses were set forth in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. There we said:

“. .. Evidence of other crimes committed by the accused may be admitted, however, where such evidence is shown to be both material and relevant to a contested issue in the case.... Thus, before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown... . ”

It was also stated:

“Evidence of extraneous offenses committed by the accused has been held admissible: ... (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. ... (6) To refute a defensive theory raised by the accused.”

This Court has held that “The fact that one woman was raped ... has no tendency to prove that another woman did not consent.” Jackel v. State, Tex.Cr.App., 506 S.W.2d 229. That case involved a prosecution for rape where the defendant admitted having intercourse with the complainant but asserted through the testimony of a defense witness that such act was with the complainant’s consent. The State was permitted to introduce evidence of an extraneous rape committed by the defendant some 17 months earlier upon another woman in order to show intent. This Court reversed the conviction after citing Caldwell v. State, Tex.Cr.App., 477 S.W.2d 877.

Caldwell involved a rape prosecution. On appeal, the defendant complained that the State was permitted to introduce evidence that he had attempted to rape the sister of the prosecutrix one month before the rape that formed the basis of the prosecution. The State argued that such evidence was admissible to show intent. We reversed holding that proof of the extraneous offense was not admissible on the issue of consent. It was found that such evidence was inadmissible because the prosecutrix was unimpeached on any material detail of her testimony. By way dicta, the Court went on to state that even if the defendant had testified and raised the issue of consent “The fact that one woman was raped ... has no tendency to prove that another woman did not consent.” Caldwell v. State, supra at 879. This dicta later formed the basis for holding in Jackel.

As we construe our holding in Caldwell, proof of the extraneous offense was not admissible on the issue of consent because there was no conflicting evidence on that issue at trial. This conclusion is supported by an examination of the authorities cited therein.¹

In Higgins v. State, supra and Haygood v. State, supra, both rape cases, the convictions were reversed on the improper admission of extraneous sex offenses. There was no conflicting evidence on the issue of consent in either of those cases. In Young v. State, supra, the conviction for indecent exposure to a child was reversed because of the admission of an extraneous offense. There, the defendant did not testify. And in Thompson v. State, supra, though the defendant raised consent as a defense and the State was permitted to introduce an extraneous attempted rape, the conviction was reversed on other grounds.

As noted above, the language in Caldwell that “The fact one woman was raped ... has no tendency to prove another woman did not consent,” upon which Jackel is predicated, is dicta. In the light of our subsequent decision in Albrecht we will now consider whether, by raising the defensive theory of consent, the defendant in a rape prosecution places matters in issue which the State may rebut by introducing evidence of an extraneous rape or attempted rape.

This Court has consistently held that when a defendant raises a defensive theory of lack of intent to wrongfully engage in criminal conduct, an extraneous offense is admissible by way of rebuttal on the issue of intent. In Avilla v. State, 493 S.W.2d 233, the defendant was convicted of robbery. At trial, the defendant admitted taking property from the complainant, but maintained that it was given to him. It was held that three extraneous robberies were admissible on the issue of the defendant’s intent. Avilla v. State, supra at 235. In Chapman v. State, 486 S.W.2d 383, the defendant admitted being present when a robbery was committed by his co-defendants, but denied any knowledge of their criminal activity. It was held that evidence of two extraneous robberies the defendant had participated in with his co-defendants was admissible. Such evidence tended to rebut the defensive theory of a lack of wrongful intent. Also see, Berry v. State, 477 S.W.2d 284.

In Williams v. State, 502 S.W.2d 135, the defendant was prosecuted for fondling. Although the defendant admitted touching the complainant, he denied any wrongful intent and maintained that he was merely tickling her. It was held that evidence of two extraneous fondling offenses was admissible to rebut the defensive theory of “completely innocent contact.” Williams v. State, supra at 136. Rangel v. State, 352 S.W.2d 275, was a prosecution for indecent exposure. At trial, the defendant testified that such exposure was unintentional and the result of a broken zipper. It was held that evidence of an exposure from the preceding day was admissible on the issue of intent.

In Drager v. State, 548 S.W.2d 890, the defendant was prosecuted for criminal mischief. It was alleged that he had intentionally driven a tractor into a barn. At trial, the defendant admitted damaging the tractor, but maintained that the collision was a result of an accident. We held that evidence that the defendant was on probation for damaging another tractor was properly admitted on the issue of intent. Drager v. State, supra at 893. In Crawley v. State, 513 S.W.2d 62, the defendant was convicted of willful injury to the personal property of another by means of a “staged” automobile collision. Although he admitted being involved in the accident, the defendant denied any intent to willfully injure the property of the complainant. It was held that evidence of six other collisions was properly admitted at trial to rebut the defensive theory of a lack of intent. Crawley v. State, supra at 65. Also see, Halliburton v. State, Tex.Cr.App., 528 S.W.2d 216; Elam v. State, Tex.Cr.App., 518 S.W.2d 367.

In order to be convicted of rape appellant must have engaged in the conduct intentionally and knowingly without the prosecutrix’s consent. It is the lack of consent on the part of the prosecutrix that is the essence of the offense of rape. When the defensive theory of consent is raised, a defendant necessarily disputes his intent to do the act without the consent of prosecu-trix. His intent is thereby placed in issue. Such intent cannot be inferred from the mere act of intercourse with the prosecu-trix. The indictment herein alleges a lack of consent by means of force and threats.

In the instant case, appellant admitted having sexual intercourse with the prosecu-trix. He maintained that she consented to the act, thus rendering his actions noncriminal. His testimony raised a defensive theory of no force or threats. This evidence directly contradicted the testimony previously given by the prosecutrix. The testimony of D_H_concerning an attempted sexual offense committed upon her by appellant in the same manner, geographical location and within the approximate time frame as the offense charged was relevant to whether appellant intended to have sexual intercourse with the prosecutrix in the instant case without her consent by means of force and threats.

We hold that when a defendant in a prosecution for rape raises the defensive theory of consent, he places his intent in issue. The State may then offer extraneous offenses which are relevant to that contested issue. To the extent that it is in conflict with this opinion, Jackel v. State, supra, is hereby overruled.

We find that the trial court did not err in admitting evidence of the extraneous offenses involving D_H_Fur-thermore, the introduction of the extraneous offenses by the State in its case in chief before the defendant raised the defense of consent was harmless. This Court has held that erroneous premature receipt of evidence of an extraneous offense may be rendered harmless based upon the subsequent actions of the defendant at trial. Jones v. State, Tex.Cr.App., 587 S.W.2d 115 at 120. Thus, in Vessels v. State, Tex.Cr.App., 467 S.W.2d 259, we held that where no question of identity was presented, error, if any, in the introduction of two extraneous offenses was rendered harmless when the defendant subsequently presented an alibi defense. Likewise, we conclude that in the instant case appellant’s defensive theory of consent rendered the extraneous offenses involving D— H_both material and relevant to the question of appellant’s intent. Error in the premature offer of the evidence was rendered harmless in light of defendant’s testimony that the prosecutrix consented. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the indictment is fundamentally defective because it fails to allege that appellant compelled submission to the rape by force and threats. The indictment alleges in pertinent part that appellant:

“... did then and there unlawfully, intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death to J_ S- D_, a female not his wife and hereafter styled the Complainant, have sexual intercourse with the Complainant and without the consent of the Complainant.”

This contention has been decided adversely to appellant in Church v. State, Tex.Cr.App., 552 S.W.2d 138. There we held that a rape indictment which failed to allege that the defendant compelled the prosecutrix to submit to rape is not fundamentally defective. The Court stated, “A reasonable reading of the entire indictment is that the prosecutrix was compelled to submit to appellant’s act by force and threats.” Church v. State, supra, at 140. Also see, Watson v. State, Tex.Cr.App., 548 S.W.2d 676; Childs v. State, Tex.Cr.App., 547 S.W.2d 613. Appellant’s second ground of error is overruled.

In his last ground of error, appellant contends that the jury charge is fundamentally defective because it permitted a conviction on a theory not charged in the indictment, namely that appellant caused serious bodily injury or attempted to cause death to the victim.

Specifically, appellant complains that in charging on the abstract definitions of rape and aggravated rape the court included a theory of aggravated rape not alleged in the indictment. He argues that although the court in applying the law to the facts charged only on the theory alleged in the indictment, the portion of the charge giving the definition of the offense nevertheless authorized the jury to convict on a theory different than that alleged. Appellant concedes that there was no objection made to the charge at trial.

Where there is no objection to the charge at trial only fundamental error will be considered on appeal. York v. State, Tex.Cr.App., 566 S.W.2d 936; Mulchahey v. State, Tex.Cr.App., 574 S.W.2d 112. We find no fundamental error in the charge. In applying the law to the facts the court charged the jury only on the theory alleged in the indictment. Cf. Lowry v. State, Tex.Cr.App., 579 S.W.2d 477; Jackson v. State, Tex.Cr.App., 576 S.W.2d 88. The jury was required to find all elements of the offense alleged. West v. State, Tex.Cr.App., 567 S.W.2d 515. No error is shown.

The judgment is affirmed.

ROBERTS, J., concurs in results.

1 . See Thompson v. State, Tex.Cr.App., 327 S.W.2d 745; Young v. State, Tex.Cr.App., 261 S.W.2d 836; Haygood v. State, Tex.Cr.App., 284 S.W.2d 547; and Higgins v. State, Tex.Cr.App., 222 S,W.2d 241, cited in Caldwell v. State, Tex.Cr.App., 477 S.W.2d 877 at 879.