Bunte v. State , 679 S.W.2d 695 ( 1984 )

OPINION

REEVES, Justice.

This is an appeal from a conviction for aggravated sexual abuse. Appellant waived a jury trial; the trial court found him guilty and levied an eighteen year sentence.

The sole ground of error asserted is that although the evidence was sufficient to support a conviction for sexual abuse, it was insufficient to prove aggravated sexual abuse. Appellant argues that the evidence does not show he compelled submission and participation by use of acts, words or deeds which placed prosecutrix in fear of death or serious bodily injury.

The aggravating elements of the offense of sexual abuse are provided in TEX.PENAL CODE ANN. § 21.05(a)(2) (Vernon Supp.1982-83) (provisions controlling on date of offense). It provides, in pertinent part:

A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code ... and he ... by acts, words, or deeds places the victim in fear of death, serious bodily injury or kidnapping to be imminently inflicted on anyone. ...

The record reveals that as prosecutrix was starting her car in a parking lot, appellant appeared at her still open left front door. Holding a knife, angled at her, he instructed her to move over. She complied. Appellant held the knife to her back with his right hand as he drove the car with his left hand. With the knife against her back, he instructed her to unzip his fly, take out his penis and kiss it.

Prosecutrix stated she complied with appellant’s demands because she was afraid she would be hurt. In response to defense attorney’s question as to what force appellant used when he asked her to kiss his genitals, prosecutrix responded, “the point of a knife in my back.” The record reveals that prosecutrix testified at several points that she was afraid appellant was going to use the knife on her. Prior to appellant forcing her to submit to the deviate act, she asked him if he wanted to hurt her. Although he responded “no,” prosecutrix testified, “I think that I believed that he didn’t want to hurt me, but ... I didn’t believe that he wouldn’t hurt me.”

Prosecutrix was able to escape from the car by stepping on the accelerator when she realized the knife was no longer pressed against her back. She ran to the car behind her and the driver of that car testified, “she was so harassed and hysterical she lost her shoes ... she was hollering, ‘Help me! Help me!’ ”

In reviewing the sufficiency of the evidence, the evidence must be viewed in a light most favorable to the verdict of the trier of fact. Denison v. State, 651 S.W.2d 754 (Tex.Crim.App.1983). In the case at bar, the trial court was the sole judge of the weight of the evidence and the credibility of the witnesses. Johnson v. State, 571 S.W.2d 170 (Tex.Crim.App.1978); Markham v. State, 635 S.W.2d 153 (Tex.App.—San Antonio 1982, pet. ref’d). If there is any evidence in the record which, if believed, establishes the guilt of the appellant beyond a reasonable doubt, the conviction should be upheld. Combs v. State, 643 S.W.2d 709 (Tex.Crim.App.1982).

Appellant argues that without threatened serious bodily injury, a conviction for aggravated sexual abuse cannot stand, citing Rogers v. State, 575 S.W.2d 555, 558 (Tex.Crim.App.1979). We agree. However, as Rogers makes clear, a threat can be communicated by action or conduct as well as by words. Id. See also Berry v. State, 579 S.W.2d 487 (Tex.Crim.App.1979).

Appellant summarizes three Texas Court of Criminal Appeals opinions where, although the evidence made out the simple offense under the penal code, convictions for the aggravated offense were reversed for insufficiency of the evidence: Rucker v. State, 599 S.W.2d 581 (Tex.Crim.App.1979); Rogers, supra; Blount v. State, 542 S.W.2d 164 (Tex.Crim.App.1976). The facts of this case do not fall within the principles established by the above cases. In Rucker, Rogers and Blount, the Court placed great emphasis on the fact that no weapon was used in the commission of the offense.

After a discussion of eases dealing with the proof necessary for a finding of a threat of serious, bodily injury, the Court states in Rogers:

In each case where this Court held the evidence was sufficient to support a conviction ... there was a showing that a gun or knife was used, or a threat to kill the victim was made, or serious bodily injury was inflicted, or a combination of two or more of these factors.

Rogers, 575 S.W.2d at 559.

In Blount, Judge Onion concurs with the reversal of a conviction for aggravated rape because of insufficient evidence to support the aggravation element. Central to his concurrence is the absence of any evidence which showed a knife was exhibited to the prosecutrix thereby causing her to submit. Blount, 542 S.W.2d at 166-68.

Prosecutrix complied with appellant’s instructions while a knife was pressing against her back. She testified she did so out of fear of being injured with the knife. Clearly the evidence is sufficient to support the conviction for aggravated sexual abuse.

The judgment of the trial court is affirmed.