Jackson v. State

OPINION ON COURT’S MOTION FOR REHEARING

DOUGLAS, Judge.

The Court on its own motion set this cause for rehearing to determine if there was fundamental error in the court’s charge.

The opinion on original submission properly decided the case by construing the charge as a whole. In view of the dissent, more will be written.

The dissenters would reverse on the ground that the court did not require the jury to find beyond a reasonable doubt that appellant threatened imminent infliction of death or serious bodily injury as alleged in the indictment before finding him guilty of the offense of aggravated rape.

The first paragraph of the court’s charge reads:

“A person commits aggravated rape if he commits rape as defined above and he compels the submission to the rape by threat of death or serious bodily injury to be imminently inflicted on anyone.”

The fourth paragraph of the charge is set out in full in the original opinion. It consists of one sentence. In part it reads:

“. . . you must find from the evidence beyond a reasonable doubt that defendant used such force on the occasion in question, if any, as to overcome such earnest resistance as might reasonably be expected under the circumstances at the time and, that any threat the defendant *825 is alleged to have made in accomplishing the sexual intercourse, if any, was such that it would prevent resistance by a woman of ordinary resolution; that defendant, in the course of the same criminal episode as the alleged rape, compelled submission to the rape, if any, by threat of death or serious bodily injury to be imminently inflicted on anyone, and that there was penetration of the sexual'organ of the female by the male organ of the party accused. If you have reasonable doubt as to any of these matters, you must find the defendant not guilty.” (Emphasis supplied)

Paragraph five required the jury to believe beyond a reasonable doubt that Jackson “as alleged in the indictment” did “intentionally and knowingly by force * * compel-, a female not his wife to submit to sexual intercourse. . . . ”

Paragraph six of the charge instructed the jury that if it had a reasonable doubt that Jackson “committed the offense of rape as defined herein” not to convict him of aggravated rape.

Rape, as defined in the court’s charge, required the jury to find rape by threat of death or serious bodily injury to be immediately inflicted.

The form of verdict which the jury used is as follows:

“We, the jury, find the defendant, Michael W. Jackson, guilty of aggravated rape, as alleged in the indictment.”

The indictment alleged that Jackson forced the prosecutrix to submit to such acts of sexual intercourse by threatening imminent infliction of death or serious bodily injury.

In Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972), this Court held:

“The charge should be viewed as a whole, and review should not be limited to parts of the charge standing alone. Cain v. State, 154 Tex.Cr.R. 284 , 226 S.W.2d 640 (Tex.Cr.App.1950).”

The Daniel case is correct, and it will be followed. See Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App.1978); Pittman v. State, 554 S.W.2d 190 (Tex.Cr.App.1977), which holds that the charge must be read as a whole and the review thereof must not be limited to a small part standing alone. In Texas Digest, 822(1), over 150 cases are listed which hold that the charge must be viewed as a whole.

The motion for rehearing is denied.