Muniz v. State

CLINTON, Judge,

dissenting.

Appellant was first convicted in 1977 of the offense of murder in the course of committing aggravated rape. See Y.T.C.A. Penal Code, § 19.03(a)(2), as it read prior to amendment by Acts 1983, 68th Leg., ch. 977, p. 5317, § 6, eff. September 1, 1983. On direct appeal this Court affirmed his conviction. Muniz v. State, 573 S.W.2d 792 (Tex.Cr.App.1978). Subsequently, however, the Fifth Circuit Court of Appeals granted federal habeas corpus relief, and ordered a new trial. Muniz v. Procunier, 760 F.2d 588 (CA5 1985). Appellant was retried under the same indictment in 1986, was again convicted and sentenced to death, and is once again before us on direct appeal. Article 37.071(h), V.A.C.C.P.

*260 In his first point of error appellant contends his conviction for capital murder on the facts presented “constitutes an improper use of the capital murder statute.” From the evidence presented at trial, he argues, it is apparent the State was bound to rely upon the very act of killing his victim to establish the aggravating element that raises the underlying felony to the level of aggravated rape as required for conviction under § 19.03(a)(2), supra. 1 In essence, although he does not specifically pray for an acquittal, appellant thus attacks the sufficiency of the State’s evidence to show capital murder in this cause.

I.

Viewed in the light most favorable to the verdict, the evidence shows that shortly after 7:00 p.m. on the evening of December 20,1976, appellant was seen following close behind Janis Carol Bickham, a Southwestern University co-ed, on a bridge crossing the North San Gabriel River in Georgetown. The temperature at the time was sub-freezing. At 10:00 a.m. the next morning, December 21, 1976, a surveyor found Bickham’s Bible, shoes, open purse, poncho and a greeting card bearing her handwriting, apparently scattered about the ground on the other side of a trimmed hedge at the end of the bridge. 2 “[S]everal of the hedges were broken over[,]” with limbs apparently strewn about, and “the dirt was scuffed up like somebody had been tussling.” The next day, December 22, 1976, the police brought in dogs. The dogs followed the scent obtained from Bickham’s shoes down to the river bottom, where they lost it. The water was, at that time, “about knee deep or a little higher.” On the opposite side of the river the police found a wire fence that had recently been bent down and apparently crossed over. Up the riverbank from the fence was an abandoned swimming pool and a roofless bathhouse. Inside the bathhouse police found that “the debris had been scattered around ... like a scuffle had taken place there.” It appeared to police that the scattering of debris had been a recent event. 3 There was an area within the bathhouse that looked “like somebody had been laying down[.]” There was no evidence of blood in the bathhouse, however. Drag marks in the grass and a trail of broken twigs led to where Bickham’s nude body was ultimately found, about fifty feet away, in the direction of the river, under a pile of driftwood. Along the way police found pantyhose and a portion of a belt. They also found “a lot of blood” that testimony showed was at a spot about three feet in diameter and “roughly” twenty feet from the body. A diagram admitted into evidence but not appearing in our appellate record reportedly described what we take to be this same area as “blood spots in struggle, approximately 15 feet to body[.]” Also, “some drops of blood” described as “minor” were observed at a separate location near the body. 4 Investigating officers could recall observing no other blood along the evidentiary trail leading from the bathhouse to the body. After the body was removed, police found a piece of driftwood close by with a blood stain on it. The stain on the driftwood showed a pattern that *261 was subsequently found to match the pattern of Bickham’s turtleneck sweater, later recovered from the riverbed. Also found in various parts of the river were Bick-ham’s bra, panties and slip.

About 8:30 p.m. on the night of December 20, 1976, an acquaintance of appellant saw him in a bloody T-shirt, 5 apparently coming from the direction of the scene of the offense. 6 Appellant had a cut on his forehead and a knot on his right wrist. Asked what had happened, appellant told his acquaintance that he had been jumped from behind and “[t]hat they had fought down there by the bridge, and he had put his hand in — you know, put his hand in his [assailant’s] mouth and it pulled his jaw loose.” Appellant further opined that he may have killed his assailant. The bottoms of appellant’s pants were wet, and he explained that he had run through the river. Later that night appellant reappeared and asked his acquaintance whether anyone had been looking for him. Informed that nobody had, appellant told his acquaintance to tell anyone who might inquire that he had not seen appellant that night.

When he was arrested on the night of December 23, 1976, appellant had “fresh” bruises and abrasions on his arms and upper body, and scrapes on his kneecaps. . The next day appellant gave a statement to police in his own handwriting. In relevant part the statement reads:

“I first seen this girl monday night walking by the bridge me and my brother + cousin were at my uncle Alvin Cruz house by the jail house. I got off and followed her toward Sonic Drive inn.

I remember her waring big dark coat and carring a small purse.

I grab her and told to come with me she said where I said don’t worry about that. We walked across the river and went up on side of the hill. I stretched the fence she went across I then cross so went to the shed and we had intercoarse. * * * I knock her incocous 7 and drag her body down by the fence next to the fence and then throw some logs on her and .then I left, [sic passim]”

Appellant told police that for a weapon he had used a rock, and that he had thrown the rock, along with Bickham’s clothing, into the river. He also related that “he had thrown something away when he had reached the street.” A witness saw appellant on a residential street near the river at about 8:30 p.m. on the night of the killing. A portion of belt matching that found at the scene of the killing, with a hair consistent with Bickham’s caught on the buckle, was‘recovered from the street.

The autopsy revealed that Bickham suffered nine blows to the head, one of which broke her jaw. Her eyes had been blacked. Her vaginal orifice was traumatized, and semen was discovered therein. The pathologist further testified:

“A. ... The torso showed both on the front side and the back side, but more pronounced on the front side, linear or line like abrasions and surrounding contusions and bruising. We refer to them as brush-burn abrasions. They more commonly are known I would suspect as scrape marks. If a body is dragged, for example, you will see those kinds of marks on the body. Those were on the front side of the torso and the anterior right thigh and also to a lesser extent, not as pronounced on the back as they were on the front.

And then there were so-called defense type contusions or bruises over the dor-sum, which is the top side of the hands, and the forearms.

*262 Q. Could you explain to us what a defense type wound is?

A. A defense type wound is that type of wound that is characterized as being the result of something or someone striking a part of the body where the victim would either tend to — if he or she is aware of a blow or blows, to either cushion the blow or ward it off. They can happen either way.”

On one of Bickham’s breasts was a “semicircular linear mark ... [t]hat is consistent with the upper part of her bra[.]” The pathologist agreed that this would “tend to indicate a bra being worn while being dragged[.]” All of the head wounds were of a type that their infliction would “tend to splatter blood,” although “not necessarily” in “a shower of blood” as with arterial bleeding. As to specifically when the various wounds were inflicted, the autopsy was inconclusive. The pathologist testified on cross-examination:

“Q. Could you tell from your examination, Doctor, whether the blows that you have described to the head were struck at the time of the — of intercourse, after or before?

A. The best I could say was at or about the same time. It could have been a few minutes before. It might have been a few minutes after.

Q. Okay. So, there could have been intercourse before any of the blows were inflicted?

A. Yes, sir.

* * ⅜ * * 5¡C

Q. ... The — the eyes, the trauma to the eyes, in your opinion, did that come from blows to the eyes or can that result also from striking of the head somewhere else?

A. It can come under some circumstances for [sic] trauma to the blood elsewhere — I’m sorry, trauma to the head elsewhere. But in this particular instance, it’s my opinion that it was from direct blows because of the distribution type and nature of the hemorrhage.

Q. And there is — is there any way that you can tell whether all of these injuries occurred at the same time?

A. The best, again, that I can say is at or about the same time. They were recent injuries, which means that within a very short interval prior to death.

Q. Very short interval prior to death?

A. Yes, sir.

Q. And you don’t know with a great . deal of specificity what that interval might have been?

A. I can’t be more specific than say a matter of a few minutes or up to as long as 12 hours, but that would be the remote likelihood.

Q. Okay. So, I guess what I am getting at, and I don’t know quite how to ask the question is, you’re not saying that the black eyes occurred at one time and the striking of the head occurred at a different time or — you just can't tell?

A. That’s correct.”

II.

Coupled with appellant’s confession, the circumstantial evidence in this cause is more than sufficient to show appellant raped and killed Bickham. We know that appellant accosted Bickham at the end of the North San Gabriel River bridge, and that a “tussle” took place at the hedge there. Appellant evidently used some level of force or threat to take Bickham across the river, over a fence, and into the bathhouse, where another “struggle” ensued. Appellant had intercourse with Bickham and then somehow rendered her unconscious. He then dragged her at least partially clad body down toward the river, bludgeoned her there, apparently with a rock, and covered her naked body with driftwood. He threw her sweater and undergarments, along with the murder weapon, into the river.

Appellant concedes that he is susceptible to conviction for either murder or aggravated rape as those offenses were defined in 1976. He nevertheless argues that he should not have been convicted of capital murder. His argument is twofold. First he argues that, consistent with ordinary rules of statutory construction, § 19.-03(a)(2), supra, cannot be read to permit *263 conviction for capital murder whenever the act comprising the killing is all that is available to serve also as the aggravating factor elevating simple rape to aggravated rape. Second, he maintains that on the state of the present record the killing itself is in fact the only evidence available to aggravate the rape. I shall address these contentions in turn.

A.

The indictment alleges appellant intentionally caused the death of Bickham and “was then and there in the course of committing and attempting to commit aggravated rape[.]” Conformably with the statutory definitions of rape and aggravated rape extant in 1976, the trial court authorized the jury to convict should it find appellant killed Bickham in the course of committing or attempting to commit aggravated rape as defined in the jury charge, viz:

“Our law provides that a person commits rape if he intentionally or knowingly has sexual intercourse with a female not his wife without the female’s consent.

The intercourse is without the female’s consent if he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or, if he compels her to submit or participate by any threat communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm.

A person commits aggravated rape if he commits rape, as defined above, and he:

(a) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or

(b) compels submission to the rape by threat of death or serious bodily injury to be imminently inflicted on anyone.”

See former V.T.C.A. Penal Code, §§ 21.02 & 21.03, prior to amendment of the latter by Acts 1981, 67th Leg., ch. 96, p. 203, § 1, eff. September 1, 1981. “Serious bodily injury” was defined in the charge, consonant with V.T.C.A. Penal Code, § 1.07(34), as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 8

The question is whether the statutory language, reflected in the charge, admits of a prosecution for capital murder on facts that show no more than a simple rape followed by a murder. On its face the statute would seem to demand more, insofar as it requires an intentional murder in the course of an aggravated rape. An argument that a simple rape followed by a murder nevertheless constitutes capital murder can certainly be made. But it seems to me that such an argument could only proceed as follows: To commit capital murder under § 19.03(a)(2), supra, one must “commit murder as defined by Section 19.02(a)(1) of” the Penal Code, which is to say, one must have “cause[d] the death of an individual[.]” Moreover, under § 19.-03(a)(2) the killer must have “intentionally committed] the murderf.]” Manifestly, one who has intentionally caused the death of another has also intentionally or knowingly caused “serious bodily injury” under § 1.07(34), supra, since “serious bodily injury” may be “bodily injury ... that causes death.” In short, an intentional killing in the course of rape would also qualify, a fortiori, as an aggravated- rape. 9 But *264 therein lies the problem. For by this theory every rape followed by a murder will constitute capital murder. The word “aggravated” becomes wholly superfluous. This runs counter to the presumption, honored elsewhere in our capital murder jurisprudence, that in promulgating a statute the Legislature intends its entire enactment to be effective. Heckert v. State, 612 S.W.2d 549, at 552-53 (Tex.Cr.App.1981). See V.T.C.A., Government Code § 311.-021(2).

The State cites Barnard v. State, 730 S.W.2d 703 (Tex.Cr.App.1987), for the proposition that conviction for capital murder is appropriate even though the killing might be all that aggravates the rape. See also Fearance v. State, 771 S.W.2d 486 (Tex.Cr. App.1988). In Barnard the State alleged that the killing of the victim was the as-saultive conduct which raised simple theft to the level of a robbery. Expressly relying upon Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), Barnard argued that the State could not be permitted to use the killing both to elevate theft to robbery, under V.T.C.A. Penal Code, § 29.02(a)(1), and to supply the intentional murder. The Court held that Garrett does not support Barnard’s argument. Garrett had been indicted and prosecuted for murder under the felony-murder provision in V.T.C.A. Penal Code, § 19.02(a)(3). 10 Under this theory of murder an intentional or knowing killing is not required; intent to commit the underlying felony offense will provide the culpable mental state necessary to convict for murder. The State alleged that Garrett had caused the death of his victim in the course of committing aggravated assault against him. Following “the vast majority of jurisdictions throughout the United States [that hold] that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide[,]” 573 S.W.2d at 545, the Court held that intent to commit the aggravated assault could not supply the necessary culpable mental state for murder under § 19.02(a)(3), supra. The Court found a source for this imposition of the so-called “merger doctrine” in the language of the statute itself. Because aggravated assault is a lesser included offense of voluntary manslaughter, and because voluntary manslaughter is expressly excluded under § 19.02(a)(3) as a basis for application of § 19.02(a)(3), supra, the Court held that Garrett could not be prosecuted for murder. “The legislative prohibition against resting a Sec. 19.02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter. To hold to the contrary would render the statute meaningless and its effect nil.” 573 S.W.2d at 546.

Not surprisingly, the Court rejected Garrett as a foundation for relief in Barnard . The Court reasoned:

“V.T.C.A., Penal Code, Section 19.-03(a)(2) provides that a person commits capital murder if he commits a murder in the course of committing a robbery. V.T.C.A., Penal Code, Section 19.02(a)(1) provides that murder occurs when a person intentionally or knowingly causes the death of another individual. Unlike the felony murder provision, V.T.C.A., Penal Code, Section 19.02(a)(3), there is no transferred intent from a lesser to a greater offense under our capital murder statute. Rather under the capital murder statute, the commission of robbery is simply one of the circumstances which our legislature deemed to make the murder more deserving of the death penalty.” 11

*265 730 S.W.2d at 709 . See also Fearance v. State, supra, at 493. In short, Garrett construed § 19.02(a)(3), supra. It does not dictate our construction of § 19.03(a)(2), supra. It is simply inapposite to the question here.

Although he alludes to it by way of analogy, however, appellant does not rely on Garrett . Instead he relies upon ordinary principles of statutory construction, much as I do today. Another circumstance the Legislature deemed sufficient to make an intentional murder susceptible to the death penalty is the commission, not of simple rape, but of aggravated rape. “Every word of a statute is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and word be given effect if reasonably possible.” Morter v. State, 551 S.W.2d 715, at 718 (Tex.Cr.App. 1977), quoting Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 591 , 298 S.W.2d 93, 96 (1957). See also Polk v. State, 676 S.W.2d 408, at 410 (Tex.Cr.App. 1984); Childress v. State, 784 S.W.2d 361, at 364 (Tex.Cr.App.1990). Cf. Boykin v. State, 818 S.W.2d 782, at 786 (Tex.Cr.App. 1991) (statutes should not be read in such a way as to render a portion “essentially superfluous.”). To allow the killing itself to supply “serious bodily injury” so as to elevate rape to aggravated rape for purposes of prosecution for capital murder under § 19.03(a)(2), supra, effectively reads the word “aggravated” out of the statute. 12 It is possible, however, to interpret the requirement of “aggravated” rape in a way which gives purpose to the word. Accordingly, I would hold that in order to convict an accused for capital murder on a theory that he intentionally caused the death of the deceased in the course of committing or attempting to commit aggravated rape, the State must prove either that he caused serious bodily injury apart from the specific conduct that caused the death of the deceased, that by discrete conduct he attempted to cause the death of the deceased, or that he compelled submission to the rape by a threat of death or serious bodily injury to be imminently inflicted on anyone. 13 See former § 21.03, supra.

I therefore agree with the first step of appellant’s argument that the State must prove aggravation of the rape by some conduct apart from the killing itself. 14 I *266 turn to the.second step of his argument and address whether the evidence here failed to establish any such conduct.

B.

It is almost too elemental to reiterate that serious bodily injury “must be proven by evidence in order to substantiate and support a verdict.” Williams v. State, 696 S.W.2d 896, at 898 (Tex.Cr.App.1985). Any evidence of aggravation of the rape apart from the killing itself is wholly circumstantial here. Thus, the evidence must be such as to discount every reasonable alternative hypothesis but that by an act discrete from the killing itself appellant caused serious bodily injury or attempted to cause the death of Bickham, or that he compelled her submission to the rape by threat of death or serious bodily injury to be imminently inflicted on anyone. See Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (Opinion on State’s motion for rehearing); Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989). 15

The circumstantial evidence does not show that appellant attempted to kill Bick-ham or inflicted serious bodily injury to her prior to dragging her unconscious body from the bathhouse and apparently bludgeoning her to death. Although there were signs of struggle both beside the hedge at the end of the bridge and in the bathhouse, no blood was found at either location, or anywhere in between. Nor do we find any other concrete evidence in the record to indicate appellant used force sufficient to cause death or create a substantial risk thereof, or to cause permanent disfigurement or protracted loss or impairment of any bodily member or organ. See § 1.07(34), supra.

Although by his own confession appellant knocked Bickham unconscious, the act of rendering a victim unconscious, by manner and means unknown, is not sufficient evidence of serious bodily injury. Fierro v. State, 626 S.W.2d 597 (Tex.App.—El Paso 1981, pet. ref'd). Cf. Sanchez v. State, 543 S.W.2d 132, at 134 (Tex.Cr.App.1976) (where defendant rendered his victim unconscious and amnesic by some unknown means, “it is highly questionable that the evidence is sufficient to show serious bodily injury to constitute the felony offense charged.”). It is conceivable on the evidence that appellant may have blacked Bickham’s eyes and/or broken her jaw in the bathhouse or earlier, injuries which would not necessarily have produced a discernible residue of blood. Certainly the defensive wounds, bruises only, on Bick-ham’s hands and forearms indicate she suffered some level of assaultive conduct while she was still conscious. Whether or not inflicted in the bathhouse, however, black eyes, without more, do not establish serious bodily injury. Cf. Pickering v. State, 596 S.W.2d 124, at 128 (Tex.Cr.App. 1980) (bruises and burns do not show serious bodily injury per se). As for the broken jaw, there was no specific testimony about the nature or extent of this injury; no testimony it would have constituted a “protracted” impairment of a bodily member. See Moore v. State, 739 S.W.2d 347, at 352 (Tex.Cr.App.1987) (Plurality opinion).

Moreover, the pathologist could not tell the chronology of Bickham’s injuries. It is as consistent with the State’s evidence and the evidence as a whole that these injuries were caused during the final, fatal assault as that they occurred earlier. The record provides no substantial basis to prefer either theory. Thus we are left to speculate, and even “accepting the inculpatory circumstances ... there is a reasonable hypothesis other than guilt which also would account for the circumstances.” Girard v. *267 State, 631 S.W.2d 162, at 164 (Tex.Cr.App. 1982). The State has failed to establish more than a suspicion that appellant caused serious bodily injury or attempted to cause death by conduct discrete from the killing itself. “The law deems such level of proof to be insufficient to support a conviction upon circumstantial evidence.” Pickering v. State, supra, at 129.

Nor is there evidence of a threat of death or serious bodily injury which compelled Bickham to submit to the rape. The record contains no indication of an express threat at all. 16 Certainly the bruises on Bick-ham’s hands and forearms tend to show a response to acts or deeds that must have conveyed some level of threat. However, under this Court’s construction of § 21.-03(a)(2), supra, as that provision read in 1976, “absent an express verbal threat, evidence was sufficient to prove aggravated rape ... only when a gun, knife, or a deadly weapon was used, or serious bodily injury was in fact inflicted.” Rucker v. State, 599 S.W.2d 581, at 586 (Tex.Cr.App. 1979). Here there is no evidence that a verbal threat was made, that a weapon was used, or that serious bodily injury was inflicted prior to or during the commission of the rape. Thus I would hold there is a failure of proof of a threat sufficient to show the rape was aggravated. Rucker v. State, supra. 17

Accordingly we should hold that the evidence is insufficient to establish appellant’s guilt for the offense of murder committed in the course of aggravated rape. In keeping with 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), we should therefore reverse the judgment of the trial court and remand the cause for entry of a judgment of acquittal. Holding instead that the elements of aggravated rape and of murder may “overlap,” op. at 246, the majority does not. I respectfully dissent.

BAIRÍ), J., joins this opinion.

. Prior to the 1983 amendment, § 19.03(a)(2) read:

"(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this Code and:

******

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated rape, or arson[.]”

. A diagram of the area showing the location of these items was admitted into evidence, but is not included in the appellate record.

. One officer testified, “And you could tell that the thing was freshly done because of the way you could tell by the way it was done.” He later testified that he considered the marks to be fresh because they were similar to the footprints the police themselves made on the dirty bathhouse floor. Judging solely from the xeroxed copies of photographs that were introduced into evidence showing the inside of the bathhouse, it is not apparent that a scuffle took place at all, much less a recent one.

.Again, because the diagram is not in the appellate record, we cannot be sure of the precise location of these blood drops in relation to the body of the deceased or the spot where "a lot of blood” was found.

. The blood type on the T-shirt appellant later surrendered to police was his, not the deceased’s. There is some intimation that this was not, however, the shirt he wore during the offense.

. Again, although this time there is an aerial photograph in the appellate record, the witness's allusion is utterly ambiguous on a cold record:

"Q. ... Show the direction from which Pete Muniz came.

A. From this way, that way (indicating).”

.This is my best guess at appellant’s spelling of this word. His handwriting at this point is practically indecipherable. In reading appellant’s statement to the jury, the prosecutor interpreted the word to be "unconscious.” In context, that seems the most likely interpretation.

. All emphasis supplied unless otherwise indicated.

. This is the very argument the State made in Alexander v. State, 740 S.W.2d 749, at 760 (Tex. Cr.App.1987). The State also made the alternative argument in that cause that the evidence was sufficient to convict even assuming that aggravation of the rape apart from the killing itself was necessary. Without specifically embracing either of the State’s arguments, the Court in Alexander merely observed that “[t]he jury is the trier of the facts,” and summarily held the evidence sufficient. Thus, notwithstanding West’s headnote number 2, see 740 S.W.2d at 750 , it is not at all clear that Alexander held that “[e]vidence of sexual intercourse and of serious bodily injury causing death was sufficient to support jury finding that murder was committed in course of committing or at *264 tempting to commit aggravated rape, so as to elevate intentional murder to capital murder."

. This provision reads:

“(a) A person commits an offense if he:

******

(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”

. Emphasis in the original.

. Even assuming that the rape victim and the murder victim are separate individuals, the word "aggravated” would nevertheless be superfluous. Under § 21.03(a)(1), supra, a rape may be aggravated where the defendant "causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode[.]” A defendant who, in the course of committing an otherwise simple rape against one victim, intentionally causes the death of "another," has a fortiori committed aggravated rape of the first victim by virtue of having killed the second. Thus, every rape followed by an intentional murder, even the murder of "another,” will result in a prosecution for capital murder, and the word "aggravated” still serves no purpose. Accordingly, although I agree with the ultimate disposition in Crawford v. State, 632 S.W.2d 800 (Tex.App.—Houston [14th] 1982, pet. ref'd), I cannot endorse its rationale.

. Because it is necessary that the threat compel submission to the rape, see former § 21.-03(a)(2), supra, any theory of prosecution proceeding upon a threat of death or serious bodily injury must show a threat occurring before or contemporaneous with the rape. See Rucker v. State, 599 S.W.2d 581, at 582 (Tex.Cr.App. 1979) (panel opinion on original submission); Church v. State, 552 S.W.2d 138, at 140 (Tex.Cr.App. 1977). Unless we are to hold that a dead body can be raped, see Gribble v. State, 808 S.W.2d 65, at 72, n. 16 (Tex.Cr.App.1990), it must also, perforce, precede the killing.

. The majority contends that this construction of the statute must be rejected because it leads to “absurd results.” As I understand the argument, because of difficulties of proof, the State will obtain fewer convictions for capital murder, and will have to settle in many instances for separate convictions for the offenses of rape and murder. Op. at 244-245. That a particular construction may yield fewer convictions, however, hardly seems a basis to conclude it is absurd. Indeed, to give our capital murder statute its strictest interpretation would seem to be in keeping with the Eighth Amendment requirement that states narrowly circumscribe the class of death-eligible defendants. E.g., McCleskey v. Kemp, 481 U.S. 279, at 305 , 107 S.Ct. 1756, at 1774 , 95 L.Ed.2d 262, at 287 (1987). That a majority finds the narrow construction distasteful does not, except by fiat, make it absurd.

Moreover, the majority cites Barnard v. State, supra, and Wooldridge v. State, 653 S.W.2d 811 (Tex.Cr.App.1983), as authority for its construction of the statute. But the argument made in *266 Barnard was quite different than that made here. As I said in the text, ante at 247, Barnard is inapposite. And in Wooldridge the evidence clearly demonstrated that serious bodily injury occurred well before the conduct that caused the death. 653 S.W.2d at 816, n. 9 . To quote our belief that “this is the very conduct the Legislature sought to proscribe as a capital offense” while ignoring the footnote, and then champion this revisionist view of Wooldridge as support for its construction today is, to be kind, disingenuous.

. Our recent abandonment of the Carlsen/But-ler "analytical construct” in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), was expressly made applicable only to cases tried after issuance of mandate in that cause.

. In Harrison v. State, 686 S.W.2d 220, at 222 (Tex.App.—Houston [1st] 1984, pet. refd), it was held that threatening to "knock out” a victim was sufficient to "place [her] in fear of serious bodily injury” under § 21.03, supra, as it read after the 1981 amendment. See Acts 1981, 67th Leg., ch. 96, p. 203, § 1, eff. September 1, 1981. Here there is no evidence of a verbal threat to knock Bickham out.

. The opinion on rehearing in Rucker carried only a plurality of the Court, and drew a vigorous dissent from the instant writer. Nevertheless, the holding in Rucker was followed in Holder v. State, 643 S.W.2d 718 (Tex.Cr.App. 1983). Although Holder was a panel opinion, with one judge dissenting, the Court later denied rehearing en banc. § 21.03 was amended in 1981, see Acts 1981, 67th Leg., ch. 96, p. 203, § 1, eff. September 1, 1981, the effect being to legislatively "remove Rucker from the jurisprudence of the State.” Richardson v. State, 753 S.W.2d 759, at 765 (Tex.App.—Dallas 1988, no pet.). It was the version of § 21.03 in effect when Rucker was decided, however, that applies in the instant case.