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644 S.W.2d 726

Richards v. State

Court of Criminal Appeals of Texas

Decided December 22, 1982

Court of Criminal Appeals of Texas · decided 1982-12-22

Cited by 2 later decisions — most recently June 1996

2 state decisions

Key passage — most relied on by later courts

“If you find from the evidence beyond a reasonable doubt that on the occasion, and at the time and place alleged, the defendant did cause the penetration of [the complainant’s] female sexual organ by inserting his sexual organ therein, but you further find, or you have a reasonable doubt thereof, that defendant did not compel [the complainant] to submit or participate in the act by threatening to use force, violence, or a deadly weapon against [the complainant], then you will find the defendant not guilty. (Emphasis added)”

quoted by 1 later decision, including Dodgen v. State

Relies on Messenger v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1982-12-22

View the full empirical analysis of this case →

¶1OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

¶2Appellant was convicted of aggravated sexual abuse and the jury assessed punishment at fifty years. The Court of Appeals affirmed the conviction in an unpublished opinion. We granted appellant’s petition for review in order to consider his contention that the jury charge was fundamentally defective.

¶3*727The indictment alleged that appellant did:

“... with intent to arouse the sexual desire of the Defendant, and by force and by threatening the imminent infliction of serious bodily injury and death to and without the consent of V_S_, a person not his spouse and hereafter styled the Complainant, have deviate sexual intercourse with the Complainant by placing his penis in the mouth of the Complainant.”

¶4The court, in applying the law to the facts of the case, instructed the jury:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that in Harris County, Texas, on or about February 21,1980, the defendant did then and there with intent to arouse his sexual desire and by force or by threatening the imminent infliction of serious bodily injury or death to and without the consent of V-S_, a person not his spouse, have deviate sexual intercourse with her by placing his penis in her mouth, you will find the defendant guilty as charged.”

¶5The State concedes that the error here is substantially the same as in Messenger v. State (Tex.Cr.App.1982), 638 S.W.2d 883. The charge is fundamentally defective because, by submitting “by force or by threatening the imminent infliction of serious bodily injury or death” disjunctively, it allows conviction for aggravated sexual abuse on finding force without finding the aggravation element alleged under V.T.C.A., Penal Code Sec. 21.05(a)(2). This requires reversal of the conviction for the reasons stated in Messenger, supra.

¶6The State argues that because the erroneous charge did include a proper submission of the elements of the lesser included offense of sexual abuse, V.T.C.A., Penal Code Sec. 21.04, the jury’s verdict should be upheld as sufficient to support conviction for that offense, and the cause should be remanded for reassessment of punishment by the trial court even though the jury assessed punishment. Appellant, having elected to be punished by the jury, is entitled to that statutory right. Art. 37.07, V.A.C.C.P. There is no authority for what the State seeks.

¶7The judgments of the Court of Appeals and the district court are reversed and the cause is remanded to the trial court.

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