Rucker v. State , 1979 Tex. Crim. App. LEXIS 1480 ( 1979 )

OPINION

ROBERTS, Judge.

After finding the appellant guilty of aggravated rape, a jury assessed his punishment at confinement for life. The appellant contends that the evidence was insufficient to prove the aggravating element of threat of death or serious bodily injury (V.T.C.A., Penal Code, Section 21.03(a)(2)).

The appellant evidently hid in the complainant’s car while she was in a post office. Soon after the complainant returned to her car and drove out of the parking lot of the post office, the appellant’s hand came over the seat and grabbed the complainant’s face. The complainant struggled to get free, but the appellant crawled into the front seat and began to hit the complainant’s face and chest with his fist. The complainant was dazed by the blows, which caused her nose and mouth to bleed. She obeyed the appellant’s instructions to turn left and to stop after driving about half a block, but she refused to back her car into a gravel, side road. The appellant continued to hit the complainant’s face and chest. He pulled the complainant out of the passenger side of the car and, holding her by the arm, walked down the gravel road a few feet before pushing her down into some weeds by the side of the road. The appellant took off one of the complainant’s shoes. The complainant struggled to get up. The appellant grabbed her again, and they walked further down the road, where the appellant again pushed the complainant down in the weeds. The complainant could not remember being hit since the time she left the car. She struggled and kicked her feet, trying to get up. The appellant pulled off the complainant’s pants and undergarments. He asked the complainant to remove her top; she refused, and the appellant removed the top and the remaining undergarments. The complainant suffered scratches and pain from lying on the weeds and gravel. The appellant then forcibly had sexual intercourse with the complainant. During this act, the appellant asked the complainant why she had gone to the post office, what her age was (she was 24), and whether she was “enjoying it.” The appellant asked the complainant to kiss him; when she refused, the appellant hit her in the face with his fist. (To the prosecutor’s inquiry whether she considered the blows to be a threat on her life, the complainant answered “Yes.”) After she kissed the appellant’s cheek, the complainant said that that was the best she could do because her lips were sore. The appellant again asked if the complainant were “enjoying it.” When the complainant said that she was not, the appellant asked her to suck his penis; she demurred, again saying that her lips were too sore. The appellant lifted the complainant up from the ground and told her to run as far and as fast as she could, or he would shoot her; the complainant ran. There was no evidence that the appellant had a gun or any other weapon. (A few minutes later the appellant and the complainant met at the car, where the appellant again struck the complainant and stole her car.) The complainant’s bodily injuries consisted of black and swollen eyes, a swollen face, cuts inside her lip, bruised chest and breasts, scratched and abraded buttocks and legs, a rash from poison ivy, and pain. She suffered no concussion, no broken bones, no internal injury, no scars, no serious permanent disfigurement, and no protracted loss or impairment of any part of her body. Compare the definitions of “bodily injury” and “serious bodily injury” in V.T.C.A., Penal Code, Section 1.07(a)(7) & (34). The only medical treatment given was some “pain medicine.”

The only verbal threat was that the complainant would be shot if she did not run. This threat was made after the rape was completed; it did not “compel submission to the rape” as is required by V.T.C.A., Penal Code, Section 21.03(a)(2) for the element of aggravation. The jury’s verdict on the element of aggravation can be upheld only if an implied threat of death or serious bodily injury was communicated by the appellant’s acts and conduct. See Blount v. State, 542 S.W.2d 164 (Tex.Cr.App.1976). Absent an express, verbal threat, this Court has held the evidence sufficient to prove an implied threat of death or serious bodily injury only when a gun or a knife was used, or serious bodily injury was in fact inflicted, or both. Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979).

The facts of this case are very similar to those of Rogers, supra: no express, verbal threat was made to compel submission to the rape; no weapon was used; the appellant struck the complainant with his fist, albeit more blows were struck in this case; no serious bodily injuries (as that term is defined by statute) were inflicted; the appellant testified that she was in fear for her life. The same result must be reached as in Rogers, supra. Although the evidence was sufficient to prove simple rape, it was not sufficient to prove the element of aggravation. The appellant’s motion for an instructed verdict of not guilty of aggravated rape should have been granted.

By the doctrines of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), our holding bars a retrial of the appellant for aggravated rape. We do not hold today that a retrial for simple rape is barred.

The judgment is reversed and the cause is remanded.