Opinion
Nos. 05-04-01537-CR, 05-04-01538-CR
Opinion Filed January 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F04-01414-NH, F04-01415-NH. Affirmed.
Before Justices WRIGHT, RICHTER, and FRANCIS.
OPINION
A jury convicted Lionel Wendal Alexander a/k/a Lionell W. Alexander of two offenses of attempted sexual assault. After appellant entered pleas of true to two enhancement paragraphs, the trial court assessed punishment in each case at confinement for life. In seven issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdicts and the trial court erred in refusing his requests to charge the jury on the lesser included offenses of assault and, in one case, indecent exposure. We affirm.
Background
At 3:00 a.m. on July 14, 2003, complainant K.A.C. left a night club and walked to her parked car. As she pulled a flyer from her windshield, K.A.C. heard appellant ask her from across the street if she had received a ticket. She replied that it was only a flyer. Appellant then crossed the street and brushed himself against her back. K.A.C. yelled at appellant to back off and leave her personal space. Appellant moved around to face K.A.C., pulled her dress zipper down to her navel, and grabbed her breast. Appellant was not wearing a shirt, and he was masturbating with one hand down his pants. K.A.C. pushed appellant away, but he returned, grabbed her face, and shoved his tongue into her mouth. K.A.C. pushed appellant away, hit him in the head, and tried to knee him in the groin. Appellant shouted that she should not have hit him, took his hand out of his pants, and began punching her in the head with his fists. K.A.C. felt "woozy" and begged and pleaded with appellant to stop. Appellant stopped hitting her, and he began rocking from foot-to-foot. When K.A.C. asked him why he was assaulting her, appellant responded that he loved her. K.A.C. told appellant that he did not love her, that she loved her boyfriend, and she falsely stated that she was pregnant. According to K.A.C., appellant "stopped and thought about it for a second," apologized, and told her to leave. K.A.C. returned to the club and told some men standing outside that a man had tried to rape her. K.A.C. did not report the offense to the police for two days. During her trial testimony, K.A.C. described appellant as "fairly muscular" and capable of raping her. K.A.C. thought appellant was trying to sexually assault her and she was fearful that he would penetrate her sexual organ with his sexual organ. K.A.C. estimated that the entire assault lasted about fifteen minutes. About 4:30 p.m. on that same day, in the same area where K.A.C. was attacked, complainant J.R.B., Kendalyn Spillman, and Trish Sujack left their office and went down to the parking lot to smoke cigarettes. J.R.B. separated from her companions because her car was parked on a different row in the lot. As J.R.B. approached her car, she heard the footsteps of someone running up behind her. J.R.B. turned and asked the approaching man, whom she identified at trial as appellant, if she could help him. Appellant stood close enough to J.R.B. that she could smell his breath. Appellant looked J.R.B. up and down while telling her, "Um, um, I like that kind of stuff." J.R.B. felt intimidated and she asked appellant to leave her alone. Spillman saw appellant harassing an obviously frightened J.R.B. Spillman alerted Sujack to what was happening and then yelled at appellant to leave J.R.B. alone. Appellant asked J.R.B. to be his girlfriend. J.R.B. declined and she again asked him to leave her alone. As J.R.B. tried to walk away, appellant swatted her buttocks. J.R.B. testified that appellant told her, "I want to get me some of that, or I'm going to get a piece of that." J.R.B. was terrified and she began walking or running toward her companions. All three women yelled at appellant to leave them alone. Appellant followed J.R.B., pulled out his erect penis, and told her, "I want to show you my big black dick." J.R.B. turned around and began screaming. Sujack got into her SUV to call the police. Appellant followed J.R.B., pushed Spillman against Sujack's car, and grabbed J.R.B. by the shoulder. Appellant rubbed his penis against J.R.B.'s buttocks through her skirt and tugged on her skirt. At trial, the three women gave differing accounts of the struggle between appellant and J.R.B. According to J.R.B., appellant pushed her and she fell onto her hand and knee before regaining her footing. Spillman testified that J.R.B. lost her shoe, causing her to fall and appellant to stumble. Sujack thought she saw J.R.B. lose her shoe and stumble briefly, allowing appellant to catch her and then push her toward the ground. All three women testified that they thought appellant intended to rape J.R.B. Appellant ran away when Brandt Wood, a man working in a nearby office building, began yelling at him from the office window. During her testimony, J.R.B. agreed that if she had proceeded to unlock her car, appellant could have forced her into her car easily. Detective Patrick Welch testified that on July 21, 2003, appellant was arrested on unrelated warrants within walking distance of the crime scenes. After Welch determined that appellant was a suspect in these offenses, both complainants picked appellant's photograph from a photographic lineup. Welch testified that he had investigated about one hundred indecent exposure cases during his career. Welch opined that offenders commit indecent exposure for self-gratification and to shock their victims. Welch could not recall personally any cases where an indecent exposure offender had assaulted the victim and he depicted such cases as "very uncommon." The defense rested without presenting any evidence. In his first four issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict. Appellant's third and fourth issues are both worded as challenges to the legal sufficiency of the evidence in cause no. 05-04-01538-CR. From the context of the argument, we deduce appellant intended one of those issues to challenge the factual sufficiency of the evidence. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support a finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Under either review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). At the time of appellant's offenses, a person committed the offense of sexual assault by, among other means, knowingly or intentionally causing "the penetration of the anus or female sexual organ of another person by any means, without that person's consent." See Act of May 28, 1997, 75th Leg., R.S., ch. 1286, § 1, 1997 Tex. Gen. Laws 4911, 4911 (amended 2003) (current version at Tex. Pen. Code Ann. § 22.011(a)(1) (Vernon Supp. 2005)). A person commits an "attempt" offense if, with specific intent to commit an offense, the person performs an act amounting to more than mere preparation that tended but failed to effect the commission of the offense. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). Appellant contends the evidence is legally and factually insufficient because it does not show he intended to penetrate either complainant's anus or female sexual organ. Appellant concedes that the evidence shows he slapped J.R.B.'s buttocks, exposed his sexual organ to her, and pressed himself against her. Appellant also concedes that the evidence shows he unzipped K.A.C.'s dress, fondled her breast, and hit her in the face when she resisted. Nevertheless, appellant contends the evidence of intent is lacking because he did not remove the complainants' clothing so he could penetrate them. As further proof that he lacked the requisite intent to sexually assault the complainants, appellant points out: (1) that there was conflicting testimony about whether he tried to push J.R.B. to the ground; (2) that he was masturbating during his encounter with K.A.C. until she hit him; and (3) despite the complainants' admissions that he could have done so, he neither forced J.R.B. into her car nor sexually assaulted K.A.C. None of appellant's contentions raise meritorious issues about the legal or factual sufficiency of the evidence. In each case, appellant confronted the complainant in a parking lot, indicated by offensive conduct that he intended to sexually assault them, and performed acts that tended, but failed, to effect the commission of the offense of sexual assault. See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex.Crim.App. [Panel Op.] 1981) (finding legally sufficient evidence to support attempted rape conviction where defendant grabbed the complainant, attempted to remove her clothing, and exposed his penis). The fact that appellant could have taken further steps toward completing the offense of sexual assault, such as removing the complainants' clothing or forcing J.R.B. into her car, does not detract from the showing that he committed attempted sexual assaults. See id. The evidence shows that appellant tugged at J.R.B.'s skirt and partially unzipped K.A.C.'s dress. The jury could reasonably infer appellant intended to remove the complainants' clothing during his encounters with them. The conflicts in the testimony regarding whether appellant pushed J.R.B. or she fell while trying to escape are immaterial. Moreover, the jury's resolution of the conflicts against appellant does not render the evidence legally or factually insufficient. See Harvey, 135 S.W.3d at 717. We also disagree with appellant's contentions that his intent to commit sexual assault is somehow negated by evidence that he was masturbating and did not proceed to penetrate K.A.C. despite having the physical strength to do so. The jury could reasonably infer that appellant was masturbating to prepare himself for penetrating K.A.C. Undisputed testimony shows appellant unzipped K.A.C.'s dress, masturbated, groped and kissed her, and beat her when she resisted. K.A.C. testified appellant apparently changed his mind and let her go after she pleaded with him and told him that she was pregnant. There is no evidence suggesting appellant accosted K.A.C. with any intent other than to sexually assault her. Having reviewed the evidence under the appropriate standards, we conclude the evidence was legally and factually sufficient in each case to support the jury's verdicts. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first four issues. In issues five through seven, appellant contends the trial court erred in denying his request to charge the jury on lesser included offenses. During the trial, appellant requested instructions on Class A misdemeanor assault for both cases and both Class C misdemeanor assault and indecent exposure for the case involving J.R.B. On appeal, appellant contends the evidence shows, at most, that he committed Class A misdemeanor assault against K.A.C. by punching her and fondling her breast. In the case involving J.R.B., appellant contends the evidence shows that he committed Class C misdemeanor assault and indecent exposure by exposing his erect sexual organ and rubbing it against J.R.B.'s buttocks. Under the code of criminal procedure:An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.See Tex. Code Crim. Proc. Ann. Art. 37.09 (Vernon 1981). The trial court should instruct the jury on a lesser included offense if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence in the record that would permit the jury to find him guilty, if he is guilty, only of the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Regarding the second element, it is not sufficient that the jury might have disbelieved evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). Rather, there must be some evidence in the record "directly germane" to the lesser included offense. Id. If evidence from any source raises the issue of a lesser included offense, an instruction on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). Evidence may indicate a defendant is guilty of only the lesser offense if (1) there is evidence which refutes or negates evidence establishing the greater offense, or (2) the evidence presented is subject to different interpretations. See id. at 391-92. The evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). Whether the instruction should be submitted is determined on a case-by-case basis. Campbell, 149 S.W.3d at 152. A person commits the offense of Class A misdemeanor assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2005). A person commits the offense of Class C misdemeanor assault by either intentionally or knowingly threatening another with bodily injury or intentionally or knowingly causing "physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." See id. at § 22.01(a)(2), (3). A person commits the offense of indecent exposure if "he exposes his . . . genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act." See id. at § 21.08(a) (Vernon 2003). The State's evidence showed appellant approached K.A.C. in a deserted parking lot, rubbed himself against her, masturbated, ignored her entreaty to back off, unzipped her dress, grabbed her breast, and, after she pushed him away, returned to shove his tongue into her mouth. Although appellant did eventually beat K.A.C. and cause her bodily injury, he did so only after she resisted his efforts to sexually assault her. Appellant offered no evidence to refute the clear showing that he intended to commit sexual assault. We conclude appellant was not entitled to a lesser included offense instruction on Class A misdemeanor assault. See Hackbarth, 617 S.W.2d at 946-47 (concluding defendant not entitled to instructions on assault and indecent exposure because State's evidence showed defendant committed attempted rape, defendant denied committing offense, and defendant did not offer any evidence on the lesser offenses). We overrule appellant's fifth issue. In the case involving J.R.B., we agree with appellant that, in a proper case, Class C misdemeanor assault may constitute a lesser included offense of attempted sexual assault. Under the present facts, however, there is no evidence to suggest that appellant is guilty only of Class C misdemeanor assault. Appellant verbalized his intent to sexually assault J.R.B. Furthermore, while rubbing his erect sexual organ against J.R.B.'s buttocks, appellant also tugged on her skirt, thus raising the reasonable inference that he was trying to remove her clothing for penetration. We conclude the evidence shows appellant touched J.R.B. in an offensive or provocative manner while attempting to sexually assault her. See Saunders, 840 S.W.2d at 391-92. See also Hackbarth, 617 S.W.2d at 946-47. We overrule appellant's sixth issue. The evidence shows appellant committed the offense of indecent exposure by exposing his erect sexual organ while attempting to sexually assault J.R.B. However, as the case involving K.A.C. illustrates, a person need not indecently expose himself in order to commit attempted sexual assault. The elements of these offenses are so dissimilar that indecent exposure need not involve a victim at all. See State v. York, 31 S.W.3d 798, 802 (Tex.App.-Dallas 2000, pet. ref'd). Thus, indecent exposure is not a lesser included offense of attempted sexual assault. See Campbell, 149 S.W.3d at 152. We overrule appellant's seventh issue. We affirm the trial court's judgments.