Opinion
Nos. 14-04-00164-CR, 14-04-00165-CR
Memorandum Opinion filed August 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause Nos. 932,604 932,605. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Leo Hampton Housley, was convicted by a jury in a single trial for the felony offenses of sexual assault (trial court cause number 932,605) and aggravated assault (trial court cause number 932,604). The jury assessed punishment in each cause at twenty years' confinement and the trial court ordered the sentences to run concurrently. Asserting four points of error in two separate briefs, appellant contends the evidence is legally and factually insufficient to sustain his convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Leo Hampton Housley, began dating the complainant in August 2001, and by October 2001, they were living together and sexually involved. Appellant and the complainant planned to marry on November 22, 2002. When the proposed wedding date arrived the couple had made no preparations and had not received a marriage license. On that day, the complainant told appellant she did not wish to marry him. According to the complainant, her news did not appear to bother appellant, but she believed it did. The next day, November 23, 2002, appellant, who did not own a car, left the residence in the complainant's car and returned several hours later under the influence of embalming fluid. Later in the evening, an argument ensued and the complainant left the house on foot. The complainant ran through the street and was approached by an unidentified man in a passing vehicle who offered assistance. The complainant accompanied the man to his house for approximately three hours before she returned home. Appellant was not at home when the complainant returned, so she loaded her belongings into the man's car. Before she could finish, appellant arrived and an argument ensued. The driver left, and the complainant got into her car and locked the doors. Appellant broke the driver's side window with his fist, unlocked the door, pulled the complainant out of the car, and pushed her into the house. Inside, appellant punched the complainant in the head numerous times causing her to briefly lose consciousness. When she regained consciousness, appellant kicked her in the stomach and stomped on her ribs. When the beating stopped, the complainant testified appellant told her he wanted her to perform oral sex. The complainant testified she could barely move as a result of the beating but complied because she "had to." After that, appellant tore off her jeans, got on top of her, and initiated sexual intercourse. The complainant had rib pain during intercourse and testified she could hear her rib popping. After intercourse, appellant told the complainant, "you can't say that it's rape or nothing like that because we live together" and "you don't have to say yes. You don't have a right to say no because you [ sic] live together." The following day, the complainant requested medical attention for her injuries. Appellant refused her request and would not let her leave the house because he did not want to get in trouble. According to the complainant, she could not flee the house because her rib injury prevented her from walking for one week, and she could not call for help because there was no telephone inside the house. On November 30, 2002, while appellant was away, the complainant fled the house when her sister stopped by to visit. The complainant was taken to the hospital and treated in the emergency room. The evidence shows the complainant sustained the following injuries and/or effects as a result of the assault: (1) both of her eyes were bruised and swollen shut for several days; (2) both of her shoulders were bruised; (3) partial loss of hearing in her left ear for five months; (4) a possible fractured rib; (5) loss of mobility and inability to walk for one week; and (6) a possible concussion.I. Sufficiency of the Evidence
A. Legal Sufficiency Appellant contends the evidence is legally insufficient to sustain his convictions for sexual assault and aggravated assault. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993).1. Sexual Assault
To secure a conviction for sexual assault according to the jury charge in this case, the State was required to prove the defendant intentionally or knowingly caused the sexual organ of another person (the complainant), without that person's consent, to contact the sexual organ of another person, including the defendant. TEX. PEN. CODE ANN. § 22.011(a)(1)(C) (Vernon 2003). The lack of consent can be proven by the use of physical force or violence. Id. at § 22.011(b)(1). The evidence shows appellant punched and kicked the complainant numerous times, and told the complainant after the beating to perform oral sex. Although in pain, the complainant complied because she "had to." Then, appellant tore off her jeans, got on top of her, and initiated sexual intercourse causing the complainant severe pain. After intercourse, appellant told the complainant, "you can't say that it's rape or nothing like that because we live together," and "you don't have to say yes. You don't have a right to say no . . ." Appellant argues the complainant's testimony is not credible and is insufficient to prove he compelled her to submit to sexual intercourse by the use of physical force and violence because the evidence shows: (1) they lived together and were sexually involved for approximately one year before the incident; (2) throughout the relationship, if he wanted sex, she would have sex with him; (3) he became sexually excited and wanted to have sex when she cried or became angry; (4) the record is devoid of any testimony that he told her she must comply with his sexual request or he would strike her; and (5) she did not complain of being sexually assaulted to medical personnel at the hospital or to the police. The testimony of a victim, standing alone, is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Moreover, the jury is the sole judge of the credibility of the witnesses at trial. Johnson v. State, 23 S.W.3d 1, 6 (Tex.Crim.App. 2000); see Hernandez v. State, 804 S.W.2d 168, 170 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (stating "the jury had the ability to observe the witnesses carefully, to hear the fear or violence projected from each witness, and to evaluate the credibility of each witness and the overall sufficiency of the evidence on the issue of consent"). There is nothing in the record to suggest the jury's resolution of the testimony was not reasonable. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). The complainant testified to the physical force and violence appellant used to keep her from fleeing. Immediately after the beating, the complainant submitted to appellant's sexual assault because she felt she "had to." The complainant testified appellant tore off her jeans and sexually assaulted her while she suffered through rib pain from having appellant's weight on top of her. Viewing the evidence in a light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the sexual organ of the complainant to contact his sexual organ without her consent by the use of physical force or violence. Therefore, the evidence is legally sufficient to find appellant guilty of sexual assault. We overrule appellant's first point of error.2. Aggravated Assault
To secure a conviction for aggravated assault, the State must prove the defendant committed an assault and caused serious bodily injury to another. See TEX. PEN. CODE ANN. §§ 22.01, 22.02(a)(1) (Vernon 2003). Appellant concedes there is some evidence of bodily injury but argues the evidence is insufficient to prove he caused "serious bodily injury." The Texas Penal Code defines "serious bodily injury" 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. PEN. CODE ANN. § 1.07(46) (Vernon 2003). This definition stands in contrast to "bodily injury," which is required to maintain a conviction for assault. See id. at § 22.01. "Bodily injury" is defined as: "physical pain, illness, or any impairment of physical condition." Id. at § 1.07(8). Thus, "serious bodily injury" is bodily injury plus one or more of the following effects:1. a substantial risk of death;
2. death;
3. serious permanent disfigurement;4. protracted loss or impairment of the function of any bodily member; or
5. protracted loss or impairment of the function of any bodily organ.See Moore v. State, 739 S.W.2d 347, 355 (Tex.Crim.App. 1987) (Clinton, J., concurring). Because the penal code provides a different definition for "bodily injury" than for "serious bodily injury," the Texas Court of Criminal Appeals has instructed that we presume the Texas legislature intended a meaningful difference or distinction between the two. See id. at 349. Whether an injury constitutes "serious bodily injury" must be determined on a case-by-case basis. Id. at 352. The complainant testified appellant punched her in the face and head numerous times causing her to briefly lose consciousness. When the complainant regained consciousness, appellant was kicking her in the stomach and stomping on her ribs. The evidence shows the complainant sustained the following injuries and/or effects as a result of the assault: (1) both of her eyes were bruised and swollen shut; (2) both of her shoulders were bruised; (3) partial loss of hearing in left ear for five months; (4) a possible fractured rib; (5) loss of mobility and inability to walk for one week; and (6) a possible concussion. Exacerbating the situation, the complainant testified she was unable to seek medical attention for one week. Given the Penal Code definition of "serious bodily injury," there is no testimony in this case concerning any of the sustained injuries creating a substantial risk of death or causing death, and there is no evidence the injuries caused serious permanent disfigurement. Thus, we must determine whether the complainant's injuries created a protracted loss or impairment of the function of any bodily member or organ. See TEX. PEN. CODE ANN. § 1.07(46). The State argues the evidence is sufficient to prove the complainant's loss of hearing, concussion, and rib injury each caused protracted loss or impairment of the function of a bodily member or organ. Loss of Hearing The State contends the complainant's loss of hearing in her left ear is sufficient to find protracted loss or impairment of the function of a bodily member or organ. The complainant testified that as a result of being punched multiple times on the left side of her head, she sustained partial hearing loss in her left ear for approximately five months. We agree. We hold the complainant's loss of hearing caused by trauma to her head is "impairment" of the function of a bodily member or organ. See Camarillo v. State, 82 S.W.3d 529, 537-38 (Tex.App.-Austin 2002, no pet.) (holding evidence was factually sufficient to find serious bodily injury by finding "impairment" of a bodily member or organ when the victim had difficulty breathing); Bosier v. State, 771 S.W.2d 221, 223 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd) (holding there was legally sufficient evidence to find serious bodily injury through "impairment" of a bodily member or organ when victim had impaired hearing and balance as a result of neurological damage). Having found impairment, we also hold the complainant's loss of hearing for five months is sufficiently "protracted." See Nunez v. State, 117 S.W.3d 309, 329-30 (Tex.App.-Corpus Christi 2003, no pet.) (holding evidence legally and factually sufficient to show protracted loss or impairment of a bodily function when cut to victim's finger continued to affect her six months after the assault), overruled on other grounds, Resendez v. State, 160 S.W.3d 181 (Tex.App.-Corpus Christi March 3, 2005, no pet.); Madden v. State, 911 S.W.2d 236, 244 (Tex.App.-Waco 1995, pet. ref'd) (inability to walk for three to four weeks constituted serious impairment of a bodily member); Coshatt v. State, 744 S.W.2d 633, 635 (Tex.App.-Dallas 1987, pet. ref'd) (holding loss of partial use of back for a period of three months did constitute a protracted loss of impairment). Here, viewing all of the evidence in the light most favorable to the prosecution, we hold the evidence is legally sufficient for a rational trier of fact to find the complainant's loss of hearing for five months constituted a serious bodily injury that caused a protracted loss or impairment of a bodily organ. Because we hold the evidence of the complainant's loss of hearing is legally sufficient to support appellant's conviction, we need not determine whether the complainant's concussion and rib injury were also sufficient. We overrule appellant's third point of error.