Denison v. State

TEAGUE, Judge,

dissenting.

Although I find myself in disagreement with many statements in the majority opinion, I limit my remarks in the dissenting opinion to the issue concerning the sufficiency of the evidence, i.e., whether the State established beyond a reasonable doubt that appellant committed the offense of burglary with the intent to force the complainant to have sexual intercourse with him.

Appellant was not shown to be armed with any type weapon, either before or after he entered the complainant’s apartment. He never threatened the complainant after entry with words or gestures that he was going to force her to have sexual intercourse with him, although he did inform the complainant, while masturbating himself, that he desired to have consensual sexual intercourse with her. This is not sufficient, in my view, to establish the offense of burglary with the intent to have forcible sexual intercourse with another person.

The question before this Court does not involve the appellant’s bizarre behavior, whether done intentionally or because of mental illness. Instead, the question before this Court is whether the State proved beyond a reasonable doubt what it had alleged: that appellant entered the complainant’s apartment with the intent to have forcible sexual intercourse with the complainant.

There is no question but that appellant is guilty of one or more criminal offenses, but that is not the question. The question is whether the State proved his guilt of committing the offense of burglary with the intent to have forcible sexual intercourse with the complainant.

It is axiomatic that to constitute the offense of burglary with intent to commit some felony, the specific intent alleged must be proved beyond a reasonable doubt. Such proof must, with reasonable certainty, lead to the conclusion sought, and not to mere speculation and surmise. Greer v. State, 437 S.W.2d 558 (Tex.Cr.App.1969).

In this instance, the allegation is not that appellant entered the complainant’s apartment with the intent to have consensual sexual intercourse with her, but, instead, it was alleged that the appellant made entry with the intent to commit forcible sexual intercourse with the complainant. Entry intending to have consensual sexual intercourse is not the same as entry intending to have forcible sexual intercourse. See Roberts v. State, 136 Tex.Cr.R. 138, 124 S.W.2d 128 (Tex.Cr.App.1939); Walls v. State, 164 Tex.Cr.R. 470, 299 S.W.2d 953 (Tex.Cr.App.1957); Conrad v. State, 154 Tex.Cr.R. 624, 230 S.W.2d 225 (Tex.Cr.App.1950); Baldwin v. State, 153 Tex.Cr.R. 19, 216 S.W.2d 985 (Tex.Cr.App.1949); Sanchez v. State, 143 Tex.Cr.R. 345, 158 S.W.2d 801 (Tex.Cr.App.1942); Miller v. State, 134 Tex.Cr.R. 611, 117 S.W.2d 62 (Tex.Cr.App.1938); Brown v. State, 94 Tex.Cr.R. 140, 250 S.W. 170 (Tex.Cr.App.1923); Hays v. State, 86 Tex.Cr.R. 469, 217 S.W. 938 (Tex.Cr.App.1920); Sedgwick v. State, 57 Tex.Cr.R. 420, 123 S.W. 702 (Tex.Cr.App.1909); Cotton v. State, 52 Tex.Cr.R. 55, 105 S.W. 185 (Tex.Cr.App.1907); Mason v. State, 47 Tex.Cr.R. 403, 83 S.W. 689 (1904); Mitchell v. State, 33 Tex.Cr.R. 575, 28 S.W. 475 (Tex.Cr.App.1894); Coleman v. State, 26 Tex.App. 673, 9 S.W. 609 (Tex.Cr.App.1888); Turner v. State, 24 Tex.App. 12, 5 S.W. 511 (Tex.Cr.App.1887); Allen v. State, 18 Tex.App. 120 (1885); and Hamilton v. State, 11 Tex.App. 116 (1881).

Any cases of this Court which reflect or indicate that a person may be guilty of the offense of burglary, where it is alleged that he entered the premises with intent to have forcible sexual intercourse, but the evidence clearly reflects and indicates, as here, that the defendant did not have the intent to have forcible sexual intercourse should be overruled.

No defendant, regardless of how despicable and shocking his conduct might be, or how sorry he might be as a human being, should ever be convicted of anything other than what he is accused of committing. By the facts as set out in the majority opinion, we do a disservice to the jurisprudence of this State by affirming this conviction on the evidence the State presented.

To such action, I respectfully dissent.

CLINTON, J., joins.