Opinion
No. 05-09-01240-CR
Opinion issued March 31, 2011 DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-73695-UN.
Before Justices MOSELEY, BRIDGES and O'NEILL.
MEMORANDUM OPINION
Appellant Rodney Eugene Mack appeals his conviction for aggravated sexual assault and accompanying sentence. In two issues, appellant complains: (1) the trial court erroneously deprived appellant of an instruction on aggravated assault and (2) the prosecutor engaged in harmful jury argument by injecting facts which were outside the record. We affirm.
Background
Appellant and complainant met in November of 2008, and they communicated several times over the telephone and through text messages. The complainant eventually felt harassed and scared once appellant became sexually explicit or insisted on seeing her. She ignored appellant for several days, but they regained contact. On December 9, appellant insisted on seeing the complainant. She refused. Even though the complainant did not give appellant her address, he knocked on her door around 11:00 p.m. that night. He wanted to know why she avoided him and told her he wanted to have sex. The complainant refused. He then attacked her with his hands and she fell to the floor. He told her "bitch, shut up, shut up, you made me do this." He hit her face "nonstop" and ordered her to take him to her bedroom. Following appellant's orders, the complainant undressed to her underwear. When she tried to escape, he caught her, grabbed her by the roots of her hair, pulled her down on the floor, and hit her again. Appellant then told the complainant, "[I]f you say another word, bitch, I'll break your arm." She resisted. Appellant dragged her by the hair and back into her room. He kicked her, spat on her, and threw hot wax on her body. The complainant testified appellant raped her on her bed, forcing his penis inside her vagina. As she cried, he told her to act as if she enjoyed it and grabbed her forcefully by the neck. Appellant then flipped her onto her stomach and inserted his penis into her anus. While she screamed in pain and fought him, appellant separated her legs and kept going. Appellant then had the complainant kneel near the bed. The complainant testified, "[H]e asked me to suck his penis [and] act like you enjoy it." At that moment, she reminded him she was bleeding from the wounds in her mouth, and he said, "Bitch, if you got something, I'll kill you. I'll kill you." All over again, appellant forced the complainant to get back on her bed and forced his penis inside her vagina. He made her get back on her knees, placed his penis inside the complainant's mouth, ejaculated, and told her to swallow his semen. The complainant said the appellant then told her, "You put this on yourself." When he finished, he began to destroy her possessions, including her eyeglasses. He asked the complainant for money, dumped everything out of her purse, took her driver's license, and warned that if she gave him a wrong debit card PIN number he would return and beat her again. Appellant cut his arm, and the complainant believed he was going to kill her. Appellant used a knife to cut an electrical cord from her appliances and used the cord to tie her arms. He also tied her hands with a sock. Appellant warned her not to call the police and said that he would kill her. Appellant then stole her car keys, driver's license and ATM card, and left. The complainant listened for her front door to close shut behind her, and tiptoed to it, covered her naked body with a blanket and ran out of her apartment. She knocked on several neighbor's doors and a neighbor called 911. Detective Kirk Griffith interviewed appellant after he waived his Fifth Amendment rights. The interview was played in open court and admitted into evidence. The record reflects appellant changed his version of the events over the course of the interview:Version 1: Appellant denied knowing the complainant.
Version 2: Appellant admitted knowing the complainant, but said that he "didn't have any kind of sex with her."
Version 3: Appellant said that he knew the complainant and did slap her, but he "didn't have sex with her."
Version 4: Appellant said that he "was aroused" by her but it wasn't a big deal, since he had been to strip clubs.
Version 5: Appellant told Detective Griffith that something may have happened, but it was not sex. Appellant also talked about his past and lack of contact with his father.
Version 6: Appellant admitted he knew the complainant, he was at her apartment and lost his temper, but he did not have sex with her.
Version 7: Appellant admitted his encounter with the complainant did involve oral sex "both ways."
Version 8: Appellant stated he had vaginal sex with the complainant, but only vaginal and oral sex.
Version 9: Appellant agreed that maybe his penis "slipped" into the complainant's anus, but he did not mean to put his penis in the "wrong hole."After being charged with aggravated sexual assault, appellant sent a handwritten letter to the Dallas County District Attorney, stating, "I got angry that once I gave her oral sex, and asked her to do me, she really didn't want too [sic]." He continued:
So me being under the influence, made the wrong decision, getting mad. . . . I felt mislead and disrespected. I do admitt [sic] I slapped her a few times, not knowing my strength, her eyes and lips began to swell and bleed a little. . . . I immediately began to apoligize [sic] for my actions, cause I don't hit women. So we kissed and made up . . . and we begin to have sex. No force was necessary, she relize [sic] that she was wrong. . . .At trial, appellant testified he arrived at the complainant's apartment because he was "God's gift to women," and he offered her a shoulder to cry on. He further admitted that he engaged in sexual relationships with the complainant and that he later, in a drunken, drugged and enraged state, beat her. He denied, however, that he sexually assaulted her, stating that all sexual acts between he and the complainant were consensual. Appellant further testified that all acts of physical violence, except for one slap for which he apologized, occurred after consensual sex. Appellant denied that he threatened to kill the complainant. The complainant was treated for physical trauma after she was transported to Parkland Hospital and the doctor collected DNA specimens from her body areas allegedly penetrated by appellant's penis. Forensic scientist, Courtney Ferreira, testified that appellant's blood was present on the broken objects retrieved from the complainant's apartment. Christi Wells, supervising forensic biologist at Southwest Institute of Forensic Sciences, confirmed that appellant's sperm was found on the complainant's mouth smear. While the vaginal and anal smears contained no sperm, Wells testified that these results were consistent with the complainant's testimony that appellant ejaculated in her oral cavity. The jury convicted appellant of aggravated sexual assault and sentenced appellant to ninety-nine years imprisonment and imposed a $10,000 fine. This appeal ensued.
Analysis
In his first issue, appellant contends the trial court erroneously deprived appellant of an instruction on aggravated assault. Before submitting a lesser-included offense charge, the trial court must conclude both: (1) that the requested charge is for a lesser-included offense of the charged offense; and (2) that there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). An offense is a lesser-included offense if: (1) it is established by the 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. Tex. Code Crim. Proc. Ann. Art. 37.09 (West 2010). The first part of the Hall test is a question of law that does not depend on the evidence presented at trial. Hall, 225 S.W.3d at 535-36. The court "looks to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense." Id. Thus, we turn first to the statutory elements of aggravated sexual assault as modified by the particular allegations in the indictment:(1) appellant;
(2) intentionally and knowingly;
(3) penetrated the complainant's sexual organ, mouth and anus;
(4) with his sexual organ;
(5) without her consent; and
(6) by acts and words, placed the complainant in fear that death, serious bodily injury and kidnapping would be imminently inflicted on her; and further
(7) by acts and words, occurring in the presence of the complainant, did threaten to cause her death, serious bodily injury and kidnapping.See Tex. Penal Code Ann. § 22.01(a) (West Supp. 2010). We now compare these charged elements with the statutory elements of the offense of aggravated assault as requested by appellant:
(1) appellant;
(2) intentionally, knowingly, or recklessly;
(3) causes bodily injury to another including the person's spouse;
(4) threatens another with imminent bodily injury, including the person's spouse; or
(5) causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative; and
(6) causes serious bodily injury to another, including the person's spouse.Tex. Penal Code Ann. §§ 22.01, 22.02(a)(1) (West Supp. 2010) (emphasis added). We then consider the question article 37.09(1) poses: Are the elements of the purported lesser-included offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged?" We conclude that, in the instant matter, the elements required to prove aggravated assault are not the same as, or less than, those required to prove an aggravated sexual assault as alleged in the indictment. See Tuck v. State, No. 01-06-01086-CR, 2008 WL 4757005 at *4 (Tex. App.-Houston [1st Dist.] Oct. 30, 2008, no pet.). After all, the requested aggravated assault charge requires proof appellant "caused serious bodily injury," whereas the aggravated sexual assault charge does not require such proof. Therefore, appellant's requested instruction does not satisfy the first prong of the Hall test. Id. See also Benavidez v. State, No. 13-07-00670-CR, 2010 WL 5256355 at *4 (Tex. App.-Corpus Christi Dec. 16, 2010, no pet.) (termed aggravated assault as a "lesser-but-not-included offense" of aggravated sexual assault); Trejo v. State, 242 S.W.3d 48, 52 (Tex. App.-Houston [14th Dist.] 2007, pet. granted), vacated on other grounds, 280 S.W.3d 258 (Tex. Crim. App. 2009) (aggravated assault is not a lesser-included offense of aggravated sexual assault as charged in the case). We overrule appellant's first issue. In his second issue, appellant contends the prosecutor engaged in harmful jury argument by injecting facts which were outside the record. Specifically, appellant complains that, during the course of jury argument at the guilt/innocence phase of trial, the following exchange took place:
[PROSECUTOR]:. . . .When a defendant chooses to testify, your job is to hold him to the same standards that you hold any State's witness to. You ask yourself, when you're assessing the credibility of all of the witnesses that you heard, who has a motive to lie? The person with the greatest motive to lie in this case is [appellant], because 5 feet from him are 12 people, a jury of his peers, that can send him away for life for the vicious beating, rape, robbery, assault of a young lady. He has every reason in the world to lie to you.
His testimony was incredible. He's making it up as he goes along. I don't know that I have ever seen anything quite like it.
[APPELLANT'S COUNSEL]: Objection, Your Honor. Counsel is arguing outside the record.
[THE COURT]: Overruled.For a jury argument to be proper, it must fall within one (or more) of the following four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to the argument of opposing counsel; or (4) a plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). Appellant first argues that the prosecutor's statement that appellant was "making it up as he goes along" did not fall within one of the permissible categories of argument. A prosecutor may not interject personal opinions in statements to the jury or imply a special expertise about a contested fact matter. See Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). Still, the prosecution is afforded a wide degree of latitude in drawing reasonable inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). When the defendant testifies, as here, his credibility is placed in question, and the prosecution has the right to attack his veracity in the same manner as any other witness. See Barnes v. State, 70 S.W.3d 294, 308-09 (Tex. App.-Fort Worth 2002, pet. ref'd). Accordingly, the prosecutor is allowed to argue that a defense witness is not worthy of belief. See id. (citing Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993)). The jury heard evidence that appellant gave several different versions of what took place on the night in question. When the prosecutor inquired about the numerous versions he gave Detective Griffith, appellant stated that his intentions for changing the stories were to protect his girlfriend. Thus, we conclude the prosecutor's opinion that appellant was "making it up as he goes along" is a reasonable deduction from the evidence. See Cantu, 939 S.W.2d at 633. Next, appellant argues the prosecutor made the following impermissible statement: "I don't know that I have ever seen anything quite like it," which asks the jury to rely on his expertise that the prosecutor had never witnessed perjury on this level before. We agree with appellant that this statement does not fall within one of the enumerated categories of proper jury argument. See id.; Johnson, 698 S.W.2d at 167. Still, we examine error in relation to the entire proceeding and disregard error that does not affect substantial rights. See Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000) (stating erroneous rulings regarding improper comments during jury argument encompasses non-constitutional other error within the purview of rule 44.2(b)). We consider three factors when analyzing the harm associated with improper jury argument: (1) the severity of the misconduct (prejudicial effect); (2) measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93 (citing Moseley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). We first consider the prejudicial effect of the prosecutor's statement: "I don't know that I have ever seen anything quite like it," which appellant argues means the prosecutor had never before witnessed this level of perjury. See Martinez, 17 S.W.3d at 692-93. As we have already noted, the jury heard evidence that appellant gave Detective Griffith at least nine different versions of what took place on the night in question. When the prosecutor inquired about the numerous versions he gave the detective, appellant stated that his intentions for changing his stories were to protect his girlfriend. Appellant also stated that the version of the events he testified to at trial was "the whole truth." Based upon the foregoing evidence, we conclude any prejudicial effect of the prosecutor's statement was minimal. We next consider any curative measures. See Martinez, 17 S.W.3d at 692-93. As already noted, the trial court failed to cure the prosecutor's improper argument. Still, other curative measures did take place. At the beginning of the argument, the prosecutor reminded the jury: "You-guys are the sole determiners of fact." In addition, the jury charge provided, in pertinent part, as follows: "You are the exclusive judges of . . . the credibility of the witnesses, and the weight to be given the testimony. . . ." Absent a showing otherwise, we must presume the jury followed the court's charge. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Finally, we consider the certainty of conviction absent the prosecutor's misconduct. See Martinez, 17 S.W.3d at 692-93. To obtain a conviction for the offense of aggravated sexual assault, the State had to prove appellant intentionally and knowingly penetrated the complainant's sexual organ, mouth and anus with his sexual organ without her consent and, by acts and words, placed the complainant in fear that death, serious bodily injury or kidnapping would be imminently inflicted on her and further, by acts and words, did threaten to cause her death, serious bodily injury or kidnapping. See Tex. Penal Code Ann. § 22.01(a) (West 2010). The complainant testified appellant forced his penis in her vagina, anus and mouth without her consent. She also testified that he beat her and threatened to continue beating her. Complainant testified that appellant also threatened to kill her. Her testimony was corroborated by scientific evidence presented at trial. Further, the gynecologist that examined the complainant confirmed that the complainant gave her the same account of the events in question. The police officer that interviewed her in the hospital stated that the complainant's account of the events never changed. Therefore, the record before us provides strong evidence to support appellant's conviction for aggravated sexual assault. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (complainant's uncorroborated testimony alone is sufficient to support conviction). Based on the foregoing, we believe it was reasonably certain the jury would convict appellant of aggravated sexual assault, even absent the prosecutor's improper argument. Balancing the three Martinez factors, we conclude the prosecutor's statement, "I don't know that I have ever seen anything quite like it," was harmless error. See Martinez, 17 S.W.3d at 692-93. We overrule appellant's second issue. Having overruled both of appellant's issues, we affirm the judgment of the trial court.