Johnson v. State
Johnson v. State
Opinion of the Court
OPINION
A jury found appellant guilty of the offense of rape. Tex.Penal Code Ann. § 21.02 (Vernon 1974 & Supp. 1980-81). The court assessed punishment at confinement for a term of ten (10) years.
Appellant’s single ground of error is that the trial court’s charge is fundamentally defective in failing to include the necessary element of force when applying the law to the facts.
Appellant failed to object at trial to the court’s charge to the jury. Absent such objection, only fundamental error
Here the indictment alleged that the complainant’s lack of consent was due to “use of force that overcame such earnest resistance as might have been reasonably expected under the circumstances.” The jury charge stated:
A person commits the offense of Rape if he intentionally or knowingly has sexual intercourse with a female not his wife without the female’s consent. The intercourse is without the female’s consent if he compels her to submit by force that overcomes such earnest resistance as might reasonably have been expected under the circumstances.
Following a list of definitions, the court’s application of the law to the facts stated “that such intercourse was without her [complainant’s] consent, as that term has been hereinbefore defined, . . .. ”
In determining the validity of the court’s charge “[i]t has long been held that: ‘[t]he [court’s] charge should be viewed as a whole, and review should not be limited to parts of the charge standing alone.’ ” Simmons v. State, 622 S.W.2d 111 (Tex.Cr.App. 1981) (quoting Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640 (1950)). Here the court’s charge defined consent without addressing the use of force.
The judgment is affirmed.
. Fundamental error is error “calculated to injure the rights of the appellant to the extent he has not had a fair and impartial trial.” Smith v. State, 513 S.W.2d 823 (Tex.Cr.App. 1974).
. The court’s definition as set out in the charge stated: “ ‘Consent’ means assent in fact, whether express or apparent.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.