Opinion
No. 867-83.
April 11, 1984.
Appeal from the 237th Judicial District Court, Lubbock County, Robert C. Wright, J.
Wanda M. Wray, Lubbock, for appellant.
Jim Bob Darnell, Dist. Atty., and Hollis G. Browning, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was charged with aggravated rape pursuant to V.T.C.A. Penal Code, §§ 21.03(a)(2). Trial was had to a jury; punishment was assessed at seventy-five years confinement in the Texas Department of Corrections. We granted appellant's petition for discretionary review to consider his claim that the indictment in this cause is fundamentally defective in failing to allege a threat of "imminent" serious bodily injury, a claim rejected by the 7th Court of Appeals in Amarillo.
Art. 21.03(a)(2), Texas Penal Code, now repealed, provided:
"(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:
". . . .
"(2) by acts, words, or deeds places the victim in fear of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone; or . . . ."
All emphasis is supplied by the writer of this opinion unless otherwise indicated.
The indictment in this cause, in pertinent part, alleges:
". . . did then and there 'intentionally and knowingly by threats communicated by acts, words, and deeds,' . . . compel L____ B____, a female not his wife to submit to sexual intercourse without her consent and the said Dewey Taylor Hoxsie did then and there intentionally and knowingly by act or words, and deeds compel L B to submit to sexual intercourse by placing the said L B in fear of serious bodily injury."
This crime allegedly occurred on June 26, 1982. At that time, §§ 21.03(a)(2) supra, required that the threat conveyed be of "imminent" infliction of serious bodily injury. This Court has held that failure to allege imminent harm renders an indictment fundamentally defective and is therefore reversible error. McDaniel v. State, 642 S.W.2d 785 (Tex.Cr.App. 1982); Moore v. State, 605 S.W.2d 924 (Tex.Cr.App. 1980).
The state attempts to distinguish McDaniel, supra, by contending that the second allegation of "then and there" in the indictment is sufficient to allege a threat of imminent serious bodily injury. While we agree with the state's contention that "then and there" means "at that time and at that place," we find that, as this indictment is worded, the phrase in question refers to when and where the threat was made and not to the nature of the threat.
We find the reasoning in the dissenting opinion of Chief Justice Reynolds to be dispositive of the issue:
"When read in grammatical context, the phrase refers only to the place and time appellant compelled the rape and not to when the serious bodily injury was to be inflicted. At most, the phrase merely offers an inference of imminent bodily injury; but, because the indictment must allege all of the statutory elements for aggravation, an omission of the allegation of imminent infliction of harm in the indictment cannot be inferred from the other allegations in the indictment [citation omitted]."
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the prosecution is ordered dismissed.
CLINTON, J., concurs. McCORMICK, J., dissents.