No. 08-05-00108-CR
March 29, 2007. DO NOT PUBLISH.
Appeal from the 210th District Court of El Paso County, Texas (TC# 20040D05695).
Before CHEW, C.J., McCLURE, and CARR, JJ.
KENNETH R. CARR, Justice.
This is an appeal from convictions on two counts of sexual assault, both enhanced by the allegation of a prior felony conviction. The court assessed punishment at life imprisonment on each count. We modify and affirm.
The jury was instructed to consider one count of burglary of a habitation, and three counts of sexual assault. The jury returned a not guilty verdict on the burglary of a habitation count, and it returned two guilty verdicts on the second and third counts, both charging sexual assault. The jury found Appellant not guilty on the fourth count, which was the remaining sexual assault count. The jury answered "yes" to the special issue, which inquired whether a deadly weapon was used in the commission of offenses for which Appellant was found guilty.
I. SUMMARY OF THE EVIDENCE
On July 30, 2004, the complainant left her two oldest children at her ex-mother-in-law's house for the weekend. She returned to her apartment with her twin seven-week-old babies. After feeding the babies, she spoke on the telephone with her ex-husband's girlfriend until about 1:50 a.m. She fed the babies again, and she fell asleep on the couch, next to the babies. At approximately 3:30 a.m., she awoke because she felt pressure on her left side. The complainant initially thought that it was the twins' father, but she observed that the man next to her was wearing a diamond earring. She asked the man, later identified as Appellant, what he wanted. Appellant responded that she should not look at him and that she knew what he wanted. When the complainant tried to push Appellant away, she felt something that she first thought was a screwdriver on her arm. Upon closer view, she saw that the item was a knife. The knife was lying on her left hip. The complainant told Appellant that she would do anything, as long as he did not hurt her or the babies. Appellant got on top of the complainant and began kissing her face, neck, and breasts. He then took off her underwear and penetrated her sexual organ with his finger. This caused her pain. Appellant then got on his knees and kissed and used his tongue on her sexual organ. Appellant then took his pants off and penetrated her sexual organ with his penis. Appellant commanded the complainant to get up from the couch. He got behind her and told her to take her robe off and bend over. He pushed her forward, but she "just bent to [her] knees." The complainant testified that Appellant had put the knife down on top of the pillows on the couch. When she was bending her knees down, Appellant accused her of trying to grab the knife. He picked up the knife, held it against her right side, and then placed it on a table. He tried to penetrate her from behind. When he could not succeed at that, he told the complainant to lie back down, so that he could finish. He again penetrated her sexual organ with his penis. The complainant testified that Appellant pinned her down to the sofa. His weight was too great for her to push him away. As this was occurring, the complainant reached for her phone and attempted to call 9-1-1 twice. Appellant asked her if she was going to tell anyone what had occurred, and she responded that she would not do so, as nobody would believe her. Appellant then rose, put his pants on, and put the knife in his pocket. As he walked towards the door, he told the complainant not to worry about fingerprints, because he had taken care of them. He stated that he was going to have her under surveillance for twenty-four hours, "just in case you call anybody." He then used his shirt to turn the doorknob and left the apartment. The complainant called 9-1-1, and she locked the door. She looked out the window, and she saw a white van leaving. The complainant was taken to the hospital, where she first realized that she had a "poke" or "cut" on her hip. This was an injury that she did not have prior to the assault, and it was in the area of her body where Appellant had held the knife during the assault. The complainant testified that a bedroom window screen had been bent, cut, and turned upside down. In had not been in that condition prior to the assault. She testified that she did not give Appellant consent to enter her apartment or to sexually assault her, and she was afraid that, after Appellant finished the sexual assault, he was going to hurt either her or the babies. Her thoughts about trying to take the knife away were stymied by her fear for the safety of the babies. On cross-examination, the complainant acknowledged that she did not say anything about the window screen to the police. She stated that this was due to the fact that she misunderstood that more severe damage had occurred to the screen than the damaged condition it was in prior to the assault. The complainant testified that throughout the attack, she did not scream, try to scratch her attacker, try to grab the knife, or try to run for the door. She explained that she thought that such actions would have made the situation worse and could have caused harm to the babies. Hector Rodriguez, Jr., testified that he lived in the apartment above the complainant's apartment. On July 31, 2004, while he was coming home from a night out at a little before 4 a.m., he saw a man next to the door of the complainant's apartment. A white van was parked outside the apartment. The man, whom Rodriguez identified as Appellant, was acting suspiciously, in that he took "his sweet time," and he closed the complainant's apartment door very carefully, so as not to make any noise. Rodriguez got to his apartment, and when he looked out the window five to ten minutes later, the white van was gone. He stated that the van had a chrome ladder in the back. The attendant police investigation revealed no signs of forced entry. No fingerprints of Appellant were found on the scene. The police recovered a knife from Appellant's kitchen, but the complainant was not able to identify the knife. Also, a white van with a chrome ladder in the back was found at Appellant's residence. The complainant told the police that Appellant was chewing gum during the attack, and a piece of gum was found stuck to her leg at the hospital. However, no DNA was detected on the gum. The State and Appellant stipulated that no DNA was discovered, and that the result of the rape kit collected from the complainant at the hospital revealed that no semen was detected. During the defense portion of the trial, Appellant called the sole defense witness, Isaias Paredes, who testified that he was one of complainant's neighbors. He stated that the complainant frequently had male and female guests at her apartment. The witness had seen a white van matching the van found at Appellant's residence several weeks before the incident. He saw "some young guys" who where carrying grocery bags from the van to the complainant's apartment. Paredes, however, knew nothing of the events of July 30 and 31. II. DISCUSSION
In Issue No. One, Appellant asserts that the evidence was legally and factually insufficient to support the jury's finding that a deadly weapon was used in the commission of the offense. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.-El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.-El Paso 1992, no pet.). Instead, our only duty is to determine whether both the explicit and implicit findings of the trier of fact are rational, by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness's testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex.App.-El Paso 1995, pet. ref'd). In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand or if the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1977). A special issue was submitted to the jury regarding the use of a deadly weapon. The jury answered the special issue affirmatively, and the court entered the affirmative finding on the judgments for Counts II and III. The Penal Code defines two types of items that can qualify as a deadly weapon: First is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; the second category includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(17)(A) and (B) (Vernon Supp. 2007). "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(46). Knives generally fall into the second category. McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App. 2000). While not every type of knife is per se a deadly weapon, any knife can, by virtue of its use, become a deadly weapon. See, e.g., id. Accordingly, in order for a knife to qualify as a deadly weapon, the State is required to prove that the knife, in the manner of its use, was capable of causing death or serious injury or that it was displayed in a manner conveying an express or implied threat that serious bodily injury or death will result, if the aggressor is not satisfied or complied with. Jones v. State, 843 S.W.2d 92, 96-97 (Tex.App.-Dallas 1992, pet. ref'd). Factors to consider in determining whether a knife is a deadly weapon include the dimensions and sharpness of the knife, nature or existence of wounds, manner of its use, testimony of its life-threatening capabilities, and the physical proximity of the accused and the victim. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). Another factor is the existence of threats or words used by the assailant. Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App. 1979). The State is not required to offer the deadly weapon into evidence to meet its burden of proof. Victor v. State, 874 S.W.2d 748, 751 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (citing Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. 1982)). It is also not necessary that the knife inflicted wounds. Birl v. State, 763 S.W.2d 860, 863 (Tex.App.-Texarkana 1988, no pet.); see Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986). No single factor is determinative of the deadly-weapon issue. See Nash v. State, 175 S.W.3d 427, 430 (Tex.App.-Texarkana 2005, pet. ref'd). The most important factor in determining the deadly weapon issue is the manner in which the weapon was used. Jones, 843 S.W.2d at 97. Appellant maintains that the evidence is insufficient to show that he used a deadly weapon during the sexual assaults because: (1) Since no evidence was presented regarding the physical characteristics of the knife, the State failed to prove that the knife, in the manner of its use or intended use, was capable of causing death or serious bodily injury; and (2) Appellant did not threaten the complainant with the knife, in that she was not placed in fear due to the use of the knife, and the knife was not used to cause any actual bodily injury. The complainant testified that Appellant utilized a knife during the attack. The knife was present during the entire attack. He held the knife against her at one point. Upon her realization that Appellant had a knife, complainant stopped any aspect of resistence. It is clear that Appellant used the knife to facilitate the commission of the offenses. See McCain, 22 S.W.3d at 502-03. Next, we must determine if the evidence was sufficient to support the jury's finding that the knife was a deadly weapon. There was no testimony regarding the size or shape of the knife or its deadliness. However, there was testimony that Appellant used the knife to threaten the complainant with serious injury or death, in order to compel her to acquiesce to his demands. She testified that she was placed in fear of her life (and that of her twin babies) and she submitted to Appellant's demands because of the use of the knife. Furthermore, the complainant suffered an injury. While it was minor, the poke she received showed some indication of the ability of the knife to penetrate skin. In McCain, the Court of Criminal Appeals held that the defendant's mere carrying of a butcher's knife in his back pocket during a violent attack was sufficient to demonstrate that the intended use of the knife was to show that it was capable of causing death or serious bodily injury. The court therefore concluded that the knife was a deadly weapon. McCain, 22 S.W.3d at 502-03. We likewise find that the evidence is legally and factually sufficient to support the conviction. Issue No. One is overruled. In Issue No. Two, Appellant contends that the evidence is legally and factually insufficient to support the jury's determination that Appellant penetrated the complainant's sexual organ with his finger and with his sexual organ without the consent of the complainant. Specifically, Appellant argues that no physical force or violence was used; accordingly, the State failed to prove lack of consent. The Penal Code provides that a sexual assault is without the victim's consent if the actor compels the other person to submit or to participate by use of physical force or violence. Tex. Penal Code Ann. § 22.011(b)(1) (Vernon Supp. 2007). This was the sole form of compulsion alleged in this case. In reviewing the sufficiency of the evidence with regard to the use of force and violence to prove lack of consent in a sexual assault, the courts look, not to the amount of resistance by the victim, but to the acts of compulsion of the actor. Wisdom v. State, 708 S.W.2d 840, 842-43 (Tex.Crim.App. 1986). The issue on appeal is whether sufficient evidence was presented to show that the accused compelled the victim's submission by the use of physical force or violence. Gonzales v. State, 2 S.W.3d 411, 415 (Tex.App.-San Antonio 1999, no pet.). The State needs to demonstrate only that force was used; there is no requirement that a certain amount of force be used. Id. Being pinned or immobilized is sufficient to indicate force or violence. See id. at 413-15 (testimony that victim was thrown on couch and assailant got on top of her and she was unable to move him off due to his weight was legally and factually sufficient to demonstrate use of force). In the present case, the complainant testified that Appellant pinned her to the sofa and she was unable to push him off. We find the evidence is legally and factually sufficient to support the conviction. Issue No. Two is overruled. In Issue No. Three, Appellant contends that the court abused its discretion by charging the jury with the lesser-included offense of sexual assault. At the close of evidence and outside the presence of the jury, the trial court noted that while the parties had been referring to Counts II and III of the indictment as alleging an aggravated sexual assault, those counts actually alleged a sexual assault, with a separate paragraph alleging the use of a deadly weapon. Accordingly, the court's written charge instructed the jury that Appellant was charged in Counts II and III with sexual assault. The court defined sexual assault and aggravated sexual assault, but the application paragraphs authorized the jury to convict only for the sexual assault offenses alleged in the body of the indictment. Appellant stated that he had no objection to the charge and the verdict forms indicated that the jury found Appellant guilty of two counts of sexual assault. Appellant elected to go to the court to assess punishment. The court found the felony enhancement to be true. The court stated that the range for second-degree sexual assault was five to ninety-nine years or life when the enhancement allegation was taken into account. The court sentenced Appellant to life imprisonment on both counts. The judgment and sentence includes the jury's affirmative finding of the use of a deadly weapon. Appellant contends that the court erred in sua sponte submitting the lesser-included offense of sexual assault to the jury because he was charged with aggravated sexual assault and the submission allowed the jury to convict without reaching a unanimous decision on the deadly weapon element of aggravated sexual assault. The State maintains that the court did not submit a lesser-included offense, because the actual charge was sexual assault, not aggravated sexual assault. We agree. In the indictment, the captions indicate that the offenses in both Counts II and III are aggravated sexual assault. However, the body of Counts II and III allege that Appellant intentionally and knowingly engaged in various instances of sexual assault without the consent of the complainant by the use of physical force and violence. This only alleges sexual assault. Compare Tex. Penal Code Ann. § 22.011(a), which defines sexual assault, with Tex. Penal Code Ann. § 22.021(a), which defines aggravated sexual assault. Where a variance exists between the offense indicated in the caption of the indictment and the offense alleged in the body of the indictment, the language in the body of the indictment controls. See Jackson v. State, 880 S.W.2d 432, 433-34 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). The caption of the indictment is not part of the indictment and consists of mere surplusage. See id. In this instance, the deadly weapon special issue was not an element of the offense; therefore, there is no issue of the jury's not having returned a unanimous verdict. We find that the court did not submit a lesser-included offense. Issue No. Three is overruled. In Issue No. Four, Appellant argues that he received ineffective assistance of counsel. Successful claims of ineffective assistance of counsel must first demonstrate that counsel was not functioning as counsel, guaranteed by the Sixth Amendment, in providing reasonably effective assistance. Strickland v. Washington, 466 U.S. 668 (1984). The second prong of this test requires a showing that counsel's errors were so serious as to deprive Appellant of a fair trial, such that there arises a reasonable probability that, but for counsel's unprofessional errors, the results would have been different. Reasonable probability is a likelihood sufficient to undermine confidence in the outcome. Id. at 694. Texas adopted this test in Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986); see also McFarland v. State, 845 S.W.2d 824, 842-43 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963 (1993). The constitutional right to counsel does not mean errorless representation. In order to meet the constitutional standard, counsel must provide reasonably effective assistance. Wilkerson, 726 S.W.2d at 548. In reviewing these assertions, the totality of representation is examined, as opposed to focusing upon isolated acts or omissions. Ineffective assistance of counsel cannot be established by isolating or separating out one portion of the trial counsel's performance for examination. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). In that regard, this Court, on review, will not engage in hindsighted comparisons of how other counsel, in particular, appellate counsel, might have tried the case. See Wilkerson, 726 S.W.2d at 548. A fair assessment of trial counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances at trial, and to evaluate the conduct from counsel's perspective at the time. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). We must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance. The Appellant must overcome the presumption that, under the circumstances at trial, the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 688-89; Stafford, 813 S.W.2d at 506. Consequently, allegations of ineffectiveness of counsel must be firmly founded by the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App. 1981). The burden is on Appellant to establish ineffective assistance of counsel by a preponderance of the evidence. Williams v. State, 837 S.W.2d 759, 761 (Tex.App.-El Paso 1992, no pet.). Initially, we note that Appellant did not file a motion for new trial, and no hearing was held regarding his ineffectiveness claim. In most instances, the record on direct appeal is undeveloped and cannot adequately reflect any failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). A defendant may rebut the presumption of effectiveness by providing a record from which the appellate court can ascertain that trial counsel's performance was not based on sound trial strategy. Parmer v. State, 38 S.W.3d 661, 666 (Tex.App.-Austin 2000, pet. ref'd). A defendant may provide that record by filing a motion for new trial and obtaining a hearing thereon, based on ineffective assistance of counsel. Id. Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. Id. A record that does not include any discernible explanation of the motivation behind trial counsel's actions fails to establish whether his actions were of strategic design or were the result of negligent conduct. Thompson, 9 S.W.3d at 814. As there is no record before us, we find that, at this stage of the proceedings, Appellant has failed to demonstrate ineffective assistance of counsel. Issue No. Four is overruled. We affirm, as modified, the judgment of the trial court.