¶1dissenting.
¶2Because I am still convinced that the evidence presented by the State was insufficient as a matter of law to sustain the verdict of the jury finding the appellant guilty of rape, I must therefore respectfully dissent to the majority’s holding that the evidence was sufficient to sustain the verdict of the jury.
¶3Appellant was charged with violating. V.T.C.A., Penal Code, Sec. 21.02(b)(3), which provides that the offense of rape occurs if the female has not consented and the defendant knows that she is unconscious or physically unable to resist. By virtue of the express wording of the statute, in order to legally convict a person of violating the stated provisions of the rape statute, the State must prove both of these elements of the offense. When I authored the majority panel opinion, and reached the result that the evidence was insufficient to sustain the verdict of the jury, I considered the fact that the appellant had given a confession. However, I did not find it added anything to what I discerned the facts of the case to be. And I still don’t. The majority has now concluded that the evidence is sufficient to establish that both of the above elements were proved by the State. Nowhere, however, does the majority opinion explain or inform us how such a conclusion was reached.
¶4Even viewing the facts in a light most favorable to the verdict of the jury, as this Court is required to do, I am still unable to conclude from all of the facts the State presented that the evidence is sufficient to show that the appellant knew at the time of the sexual intercourse that the female was physically unable to resist.
¶5Be that as it may, I am unable to understand how anyone can reasonably conclude that the appellant’s confession, standing alone, is sufficient to establish that the female did not consent to sexual intercourse with the appellant. Again, not only must the State prove that the female was physically unable to resist, but additionally must prove that when the act of sexual intercourse occurred, she did not consent to the act of sexual intercourse. This is the way the Legislature wrote the statute and it is our duty to give the statute a reasonable interpretation.
¶6The majority implicitly holds that the confession, standing alone, furnishes necessary evidence to prove both of the required statutory elements. I totally disagree with this conclusion. The confession nowhere specifically and expressly states that the female never consented to the act of sexual intercourse with the appellant, nor does the confession ever state that she refused to *619have sexual intercourse with the appellant. I do not believe that the mere failure of the appellant to affirmatively state in the confession that the female did consent is sufficient to prove beyond a reasonable doubt that she did not consent, since there is no indication in the confession that the appellant at the time he made the statement was in fact queried as to whether she did in fact consent. It was the State’s burden and not the appellant’s burden to prove that the female did not consent to having sexual intercourse with appellant prior to their having sexual intercourse. In fact, one of the State’s very own witnesses testified that the female did consent to the act of sexual intercourse shortly after she entered the appellant’s automobile. This fact was never contradicted by the State, either by the appellant’s confession or by any medical testimony that she would not have been able to consent — if in fact she had previously lapsed into unconsciousness due to her diabetic condition. And that was my point when ! may have overly chastised the prosecuting attorney in stating that a more probing examination of the pathologist should have occurred.
¶7Furthermore, this is a conviction based upon circumstantial evidence. There is absolutely nothing in the record of appeal to rebut the reasonable hypothesis that the female voluntarily entered appellant’s vehicle, although appearing intoxicated to appellant, but thereafter consented to having sexual intercourse with the appellant, especially in light of other unrebutted testimony that the female had engaged in sexual intercourse with the appellant on at least one other occasion.
¶8The conduct of the appellant and others in this cause, in leaving the female in a city park, while nude and torpid, continues to fill me with revulsion, and such conduct will always be repugnant to my sensibilities. But that is not the issue before this Court. Our man-made, legislatively enacted law, does not proscribe a male having sexual intercourse with a female who has become unconscious — if that female has consented to having sexual intercourse before becoming unconscious.
¶9In light of the State’s demonstrated failure to prove beyond a reasonable doubt the lack of consent by the female, I must respectfully dissent to the majority’s unexplained conclusion that the evidence is sufficient to prove such a lack of consent.
¶10OPINION ON APPELLANT’S MOTION FOR REHEARING
¶11This is an appeal from a conviction for rape. Punishment is three years imprisonment. On original submission a divided panel held that the evidence presented at trial was insufficient to support conviction. On the State’s motion for rehearing the court en banc reversed and remanded the cause holding fundamental error existed in the jury charge. On State’s motion for rehearing the court expressly held sufficient evidence existed to support the conviction. Due to our disposition of this cause on the State’s motion for rehearing, we now find it necessary to address a ground of error which was previously unanswered due to the panel’s resolution of the case.
¶12In his motion for rehearing appellant asserts that the trial court erred by admitting into evidence appellant’s confession because it was procured involuntarily. Additionally, appellant contends that this court erred in holding that sufficient evidence was presented to establish that the sexual intercourse took place without the victim’s consent and that the victim was unable to resist.
¶13On July 3, 1977, the victim, L_C_, while in the Haskell city park became sick or ill, in the presence of Frank Enriquez, Crispin Martinez, and Robert Martinez. L_C_ left the park on foot, staggering until she fell down in a nearby vacant lot. After collapsing in the vacant lot the victim was loaded into the appellant’s automobile by the appellant and Crispin Martinez. Appellant drove the victim to a secluded location near the city swimming pool. There the appellant and Crispin Martinez had sexual intercourse with L_C_
¶14*620On July 4, 1977, the naked body of L-_C-was found at the same location appellant and Crispin Martinez had had intercourse with L_C_Tes-timony at trial established that she had died sometime after having intercourse with the appellant. The probable cause of death was diabetes mellitus.
¶15On July 5,1977, appellant was questioned by the Haskell police and district attorney. After giving a statement admitting his involvement in the abduction and rape of L-C-appellant was arrested.
¶16The appellant contends the trial court erred by admitting into evidence his confession. Specifically, appellant maintains that the confession was rendered involuntary because it was induced by the district attorney’s promise that he “could probably go home” after giving a statement.
¶17It is an established rule of law that a confession based upon an inducement by a promise
¶18During the investigation of the victim’s death the appellant had been implicated in the assault. Prior to arrest appellant was requested to voluntarily come to the courthouse for questioning, which he did. He was twice advised of his rights before any questions were asked. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district attorney testified that appellant was very concerned that he was suspected of killing L_C_At the time of questioning, the district attorney had just returned from witnessing the autopsy of L_C_Although a cause of death had not been established, a violent death had been ruled out. With this information in hand, the district attorney said to appellant, “From what evidence I know now, go ahead and give the statement. Let’s get this thing all straightened up and you can probably go home.”
¶19Because of the inclusion of the term “probably” in the district attorney’s comment it is doubtful whether the remark represented a “promise.” Assuming ar-guendo that the remark did constitute a promise, the record fails to show that the remark was relied upon by the appellant in giving his statement.
¶20Appellant’s incentive for confessing appears to be a desire to avoid implication in the murder of the victim. The record clearly indicates by appellant’s own testimony that this motivation was paramount if not exclusive:
“Q. [PROSECUTOR]: Did you become fearful?
“A. [APPELLANT]: Yes, sir. When I went in there, the thing that was concerned me more was that people were saying that she had been murdered.
“Q. [DEFENSE COUNSEL]: Was that a further inducement to you to sign the written statement?
“A. [APPELLANT]: Yes, sir, because I told Mr. Beauchamp that I wanted this thing settled pretty quick because I was thinking about my wife. I knew I had been out with a girl, but I knew that I hadn’t done anything bad to her or anything. That’s why I wanted— you know, about that it would be settled without her knowing anything about it, I went ahead.”
¶21Furthermore, the appellant’s motivation for making a confession may be ascertained directly from the statement itself:
“... We heard that she had been cut up or stabbed but she was not hurt in any-. way when we left her in the park ... But none of us four hurt her anyway.”
¶22*621Clearly, examining the totality of the circumstances, the prosecutor’s remark was not the primary incentive behind appellant’s confession. We hold the confession was voluntary and therefore admissible.
¶23Appellant was indicted under V.T.C.A. Penal Code, Sec. 21.02(a) and (b)(3). In pertinent part, the indictment alleged that the appellant did:
“intentionally and knowingly have sexual intercourse with L_A._, a female not his wife, the said L-A- not having consented thereto and the said [appellant] knowing that the said L_A_was physically unable to resist.”
¶24The statutory provisions of Sec. 21.02 which was relied upon in the indictment prescribe:
“Sec. 21.02. Rape.
“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under ... the following circumstances:
U …
“(3) She has not consented and the accused knows she is unconscious or physically unable to resist.”
¶25On rehearing, this Court, in an opinion by Judge Odom, held that the confession of the appellant “is sufficient to prove the deficiencies found by the panel, and hold the evidence supports the conviction.” The confession which was introduced at trial provides:
“On the night of Sunday, July 3rd, 1977 about 10:00 or 10:15 P.M., I left my house in my car and drove around some in Has-kell. I went to the old South Side grocery store where I saw Frank Enrique and L_C_, and two other boys which I know but do not know their names at the South Side Grocery. I stopped and one of the boys, the taller of the two, and L_C_got into my car, we had to help L_get into the back seat, and we told the other boys to meet us in the park, I then drove down by the old depot and into the park where we stopped on the hill above the rest rooms. We all got out, and had to help L_get out and she layed down on the ground and me and the other boy undressed her. She had on a white blouse with black stripes and a pair of pants, and some kind of shoes. She did have on panties and a bra which we also removed. She was kind of moving some but she was awful drunk or something. I had sexual intercourse with L_and then the other boy did. After we had got through she was passed out and I took some beer that I had and poured it on her head to try to wake her up but we could not. She was breathing kind of like she was snoring. Me and the other boy got into my car and pulled down into the park by the rest rooms where we saw Frank Enriquez and the other boy’s brother by the rest rooms. We all four walked back up the hill and looked at L_and one of the brothers felt of her heart and said it was still beating and I could hear her breathing, sorta like she was snoring again. None of us knew what to do so we just decided to leave her there because we thought she was just drunk and would wake up in a couple of hours. We all walked back down to where my car was parked and I got in it and drove to the Colonial Food Store and got some cigarettes and then went home. I got home right at 11:00 P.M. During the time we were with L_we had to help her in and out of the car and she was either real drunk or something, because I don’t think she knew what was happening, she was real sick or something. Frankie Enriquez told me that he thought something was wrong with her because she had got worse the longer he was around her during the day. On July 4th, 1977 me and a bunch of my kinfolks went to the park North of Knox City, Texas about 5:00 P.M. and come back about 9:00 P.M., when we got back to Mother-in-laws she told us that L_C_had been found dead in the park. We heard that she had been *622cut up or stabbed but she was not hurt anyway when we left her in the park. She was just drunk or doped or sick, I don’t know which. But none of us four hurt her anyway. We just left her where she was laying because we thought she would get all right in a couple of hours.”
¶26From a thorough review of both the appellant’s confession as well as the trial court record it was reasonable for the jury to infer appellant was aware of the victim’s incoherency as prescribed in Sec. 21.02, supra. Clearly, the appellant realized that the female “was unable to resist.” This element can be directly inferred from the appellant’s admission in the confession that:
“During the time we were with L_ we had to help her in and out of the car and she was either real drunk or something, because I don’t think she knew what was happening, she was real sick or something.”
¶27Our inquiry is therefore now directed to the sole issue of determining whether or not sufficient evidence was presented to establish the victim “has not consented” per Sec. 21.02(b)(3), supra. The Penal Code provides the following general definition for “consent”:
“ ‘Consent’ means assent in fact, whether express or apparent.” Sec. 1.07(9), Y.T. C.A. Penal Code.
¶28In the instant situation testimony introduced at trial established that the victim was suffering from acute diabetes mellitus. Prior to, during, and after having sexual intercourse L_C_ was lapsing into a diabetic coma. Her condition was analogized to intoxication by Dr. Williams, the pathologist who performed the autopsy:
“Q. [DEFENSE COUNSEL]: ... At certain stages of intoxication [a person suffering from diabetes mellitus] develops lethargy and the same symptoms, does it not?
“A. Oh yes. I think in that respect, the symptoms could easily be confused.
$ % * ⅝! # ⅜
“Q. Now, a person suffering from an undiagnosed case of diabetes mellitus could appear to be sleepy, could they not?
“A. Yes.
“Q. Drowsy, or might have some difficulty walking?
“A. These are all — these can all be, I think, housed in the word lethargic.
“Q. Now, this — once you advance to the lethargic stage, of the diabetes melli-tus, the nervous system is affected, is it not?
“A. Yes, because the body then goes into what’s called a coma — state of coma, which is a more advanced form of lethargy where breathing may become very slow and eventually may cease. The body develops what is called in medical terms an acidosis, and then this acetone breath becomes quite profound.
“Q. But it’s principally the, effecting the nervous or mental system, is it not?
“A. The vital centers, yes.”
¶29Additionally, the victim’s lack of consent is demonstrated by the testimony of eyewitness Frank Enriquez. Witness Enriquez testified regarding the victim’s apparent physical condition as well as her abduction and rape. The witness stated that he met the victim in the park on July 3 at approximately 5:00 p.m. and engaged her in conversation. When he first approached her she appeared physically normal. However, as their conversation progressed the victim began “staggering all over the place.”
¶30Enriquez testified that the victim became so unsteady that Robert Martinez had to help her walk.
“Q. [PROSECUTOR]: How was he helping her?
“A. [WITNESS]: He put his hand around her — grabbed her so she wouldn’t fall.
“Q. All right did L-ever mention that she was sick?
“A. Yes, sir, when she got out of the monkey cage—
⅛! # ⅜ * # Sfc
“Q. Did L_ ever indicate to you that she was sick?
*623“A. Yes, sir, she did.
“Q. Did she ever ask you to take her home or help her in any way?
“A. She told us to take her home.”
¶31Enriquez continues to testify regarding the deteriorating physical condition of the victim prior to the appellant’s arrival on the scene.
“Q. [PROSECUTOR]: What did you do when you got to the South Side Grocery?
“A. [WITNESS]: We stayed there a little while and then Crispin went up there where they was, and L_she was sweating real bad, you know. She barely had her eyes open.
“Q. What do you mean sweating real bad?
“A. She had a lot of sweat on her face.
“Q. Did she ever say anything?
“A. No sir.
“Q. How was she located — standing up or laying down?
“A. Laying down.
“Q. On her stomach or on her back or—
“A. On her back.
“Q. In other words, Frank, how would you describe her condition — was she awake or passed out or—
“A. Passed out.”
¶32Witness Enriquez continues by describing the events that occurred upon appellant’s arrival at the location where the victim had collapsed.
“Q. Then what did he do?
“A. He and Crispin — he picked L_ up and they put her in the car.
“Q. You said ‘they put her in the car’— what do you mean?
“A. They grabbed her and they put her in the car.
“Q. Grabbed her and put her in the car? ******
“Q. L_ didn't walk to the car?
“A. She didn’t walk.
“Q. Are you sure?
“A. I’m sure.”
¶33Enriquez then described the victim’s condition after the appellant had intercourse with her:
“Q: Did L_have any clothes on?
“A. No, sir.
“Q. Was L_awake?
“A. No, sir.
******
“Q. Did she ever raise up?
“A. No.
“Q. Did she ever move?
“A. No, she was just breathing.
“Q. Just breathing.
“A. Breathing hard.
“Q. Was she having a hard time breathing?
“A. Yes, sir.
“Q. Did you try to help L-in any way, Frank?
******
“Q. Did you ask anybody else to help her?
“A. I asked Alberto and them to put her clothes on and Alberto he just picked them clothes up and dropped them on her like that.
“Q. What did Alberto say then?
“A. He said ‘let’s go’, so we left.
“Q. And where did you go to?
“A. We went down where his car was, and he got in his car and left and went on to Elsie’s.”
¶34From the record it was reasonable for the jury to conclude that the victim was so impaired both mentally and physically that she could not effectively resist the advances of appellant. Under the circumstances presented in the instant situation the requisite of lack of consent was demonstrated by impossibility. The severity of the victim’s impairment was graphically demonstrated by the fact that she died at the scene of the attack shortly after having intercourse with the appellant.
¶35In the instant situation the State demonstrated beyond a reasonable doubt that the victim was so severely impaired by diabetes mellitus prior to, during and after the attack that it would have been impossible for her to have voluntarily consented to any*624thing including sexual intercourse.
¶36Judge Odom’s opinion on the State’s motion for rehearing reached the proper conclusion:
“We have found fundamental error in the jury charge that requires reversal. There is no paragraph in the charge applying the law to the facts. This requires reversal. Williams v. State [Tex.Cr.App.], 547 S.W.2d 18; Harris v. State [Tex.Cr.App.], 522 S.W.2d 199.”
¶37The judgment is reversed and the cause remanded for a new trial.
¶38TEAGUE, J., concurs in the result only.
¶39. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
¶40. We expressly note that the factual context of this case is unique. We reserve ruling on conceivable situations where the victim was coherent and gave effective consent and prior to the completion of the act of intercourse a physical or mental impairment arose.
¶41dissenting.
¶42Appellant urges in his second motion for rehearing that this Court should reverse the conviction because the evidence is insufficient. To the Court’s failure to grant appellant leave to file the second motion for rehearing, reconsider the issue, and reverse the conviction for insufficiency of the evidence, I dissent.
¶43I now find myself totally unable to agree with the last opinion of this Court, as to its version of the facts.
¶44Crispin Martinez, who testified for the State, specifically testified that after he and appellant got in the automobile with the victim, L_C_, she specifically consented to have sexual intercourse with both appellant and Martinez, and thereafter they each had sexual intercourse with her. Therefore, the State had the burden of specifically rebutting the testimony of Martinez to prove the offense of rape under V.T.C.A., Penal Code, Sec. 21.02(b)(3). It did not, however, satisfy that burden.
¶45This Court, in its last opinion, to reject the appellant’s claim that the evidence is insufficient to sustain the verdict of the jury, stated in part that it was relying upon a statement in appellant’s confession, to-wit: “I don’t think she knew what was happening,” to establish that L_C_was incapable of consenting to have sexual intercourse with appellant and Martinez at the time Martinez said she agreed to have sexual intercourse with him and appellant. However, such a statement is just as consistent with an interpretation that appellant thought she was groggy, but still able to consent to the act of sexual intercourse. Especially is this true when one considers that L_C_ had previously engaged in sexual intercourse while she was intoxicated. Thus, appellant’s statement in his confession does not sufficiently rebut Martinez’ testimony that she had consented to the act of sexual intercourse prior to having sexual intercourse with him and appellant.
¶46This Court in its last opinion, to reject the contention that the evidence is insufficient to sustain the verdict of the jury, also pointed in its opinion to testimony by Frank Enriquez that L_C_had passed out at some time prior to her entry into appellant’s automobile, and that because the appellant and Martinez had to carry her to the ear, this was evidence that L_C_ was incapable of having consented at the time that Martinez said she did. However, there is nothing in the record of appeal, which includes the testimony by a medical examiner, to indicate that a person suffering from acute diabetes mellitus, as L_C_was, would be unable to regain consciousness after having passed out, and thereafter consensually engage in sexual intercourse. Thus, Enriquez’ testimony does not preclude, beyond a reasonable doubt, an interpretation of the evidence that L_C_passed out, but thereafter regained consciousness in the automobile and was able and capable of giving the consent appellant presumably relied upon before he had sexual intercourse with her. I further point out for emphasis that nobody, including L-C-, knew she was suffering from acute diabetes milletus.
¶47*625For the above reasons, I do not believe that the State has proved beyond a reasonable doubt, as required by State and Federal Constitutional law, that L_C_ did not consent before she became terminally unconscious. The State has not established beyond a reasonable doubt that the offense of rape was committed. Nor do I believe a rational and reasonable trier of fact would find the appellant guilty upon the evidence the State has presented.
¶48Appellant’s motion should be granted and the cause reversed for insufficiency of the evidence, as well for the other reasons this Court has previously given in its former opinions related to this cause.