Opinion
No. 05-02-01244-CR
Opinion Filed September 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-00442-SV. AFFIRMED
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Eddie Franklin Miller of burglary of a habitation and assessed punishment at ninety years in prison. In six points of error, appellant complains about the legal and factual sufficiency of the evidence to support his conviction and charge error. We affirm the trial court's judgment. D.W. awakened at 5:30 a.m. to find a man standing next to her bed. The man shined a flashlight in her eyes, and D.W. covered her face with her hands. The man told her he was looking for money and asked D.W. if she saw his face. D.W. assured him she had not and told him the only money she had was in her purse in the kitchen. The man began touching D.W.'s hair, and she told him he needed to leave because other people in the house would be waking up soon. The man then asked D.W. to have sex. She refused, and the man pulled the blanket off her, pulled her nightgown up to her waist, and began stroking her arm and leg. D.W. again warned the man to leave. The man attempted to fondle D.W.'s breasts and genitals, but could not because she was curled in a fetal position. The man told D.W. that he could not leave "without something" and asked her to "suck his dick." Again, D.W. refused. She then felt the man's penis being rubbed against her hands, and the man told her he would not leave unless she kissed his penis. D.W. still had her face covered with her hands, and the man began trying to force his penis between her hands and into her face. According to D.W., the man "pushed it between my hands and it bumped around my face and he told me he couldn't feel a kiss, so he stuck it in again and he bumped it around harder. And I guess he took it as I kissed it, and he pulled it out and he was just kind of standing next to my bed." Minutes later, the man left, and D.W. found semen on the carpet where he had been standing. A comparison in the semen sample and appellant's DNA produced a "match." After hearing the evidence, the jury convicted appellant of burglary of a habitation with the underlying felony of sexual assault or attempted sexual assault. In his second, third, fourth, and fifth points of error, appellant contends the evidence is legally and factually insufficient to prove he committed the underlying felony of sexual assault or attempted sexual assault. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.2d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The jury is the sole judge of the weight and credibility of the witnesses and may believe all, none, or part of any witness's testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The charge provided that appellant committed burglary of a habitation and did commit or attempt to commit sexual assault. The jury returned a general verdict rendering proof of either theory sufficient to support the conviction. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). A person commits sexual assault by intentionally or knowingly causing the penetration of the mouth of another by the offender's sexual organ without the other person's consent. Tex. Pen. Code Ann. § 22.011(a)(1)(B) (Vernon 2003). A person commits attempted sexual assault if, with specific intent to commit sexual assault, he does an act amounting to more than mere preparation that tends but fails to effect the commission of sexual assault. Tex. Pen. Code Ann. §§ 15.02(a), 22.011 (Vernon 2003). With respect to sexual assualt, appellant argues there is no evidence or factually insufficient evidence that he penetrated D.W.'s mouth with his penis. As for the allegation of attempted sexual assault, he argues that he "intentionally chose to discontinue his physical interaction with [D.W.] at the moment he contacted her lips with his penis." We disagree with both arguments. Reviewing the evidence under the appropriate standards, we conclude a rational jury could have found appellant sexually assaulted or attempted to sexually assault D.W. The evidence shows he entered her bedroom and asked her to have sex. When she refused, he pulled her nightgown up to her waist and attempted to fondle her genitals and breasts. He refused to leave until she "kissed" his penis. D.W., whose hands were covering her face, testified appellant forced his penis between her hands and "bumped [it] around her face." Appellant said he "couldn't feel a kiss" so he "stuck it in again and bumped it around harder." When D.W. kissed appellant's penis, he "pulled it out." Appellant then ejaculated on the carpet where he had been standing. At the very least, this evidence was legally and factually sufficient to support a finding of attempted sexual assault. We overrule the second through fifth points of error. In his remaining two points, appellant complains of charge error. In his first point of error, appellant complains the trial court reversibly erred in failing to include a definition of reasonable doubt in the charge at the guilt-innocence phase of trial pursuant to Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991). Appellant acknowledges the court of criminal appeals in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000), overturned Geesa, holding that the reasonable doubt instruction is no longer required and that the "better practice" is not to give the instruction at all. Appellant argues the trial court erred by retroactively applying Paulson to his case because the opinion issued after the date of his offense. Initially, we disagree with appellant's assertion that Paulson was applied retroactively in this case. This case was tried after Paulson issued. The reasonable doubt instruction is procedural in nature. See Geesa, 820 S.W.2d at 163. Procedural rules generally control litigation from their effective date. Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971); Montez v. State, 975 S.W.2d 370, 372 (Tex.App.-Dallas 1998, no pet.). Paulson was applied prospectively in this case. See Geesa, 820 S.w.2d at 163-64 (stating requirement that jury be charged on reasonable doubt applies prospectively to cases tried after case issued). We overrule the first point of error. In his sixth point of error, appellant complains the trial court reversibly erred by refusing to charge the jury on burglary with theft as the underlying offense, a second-degree felony, as a lesser- included offense of burglary with sexual assault as the underlying offense, a first-degree felony. A defendant is entitled to a lesser-included offense instruction if (1) the lesser-included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. Westbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Id. Appellant has failed to meet either prong in this case. The indictment charged that appellant did:
unlawfully, knowingly and intentionally enter a habitation without the consent of [D.W.], the owner thereof, and did then and there commit and attempt to commit a felony other than theft, namely, SEXUAL ASSAULT[.](Emphasis added.) To prove the charged offense, the State was required to prove that (1) appellant, (2) without D.W.'s consent, (3) entered her habitation, and (4) committed or attempted to commit a felony other than theft, namely, sexual assault. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). To prove burglary with theft or intent to commit theft, the State would have to show (1) appellant, (2) without D.W.'s consent, (3) entered her habitation, and (4) committed or intended to commit theft. See Tex. Pen. Code Ann. § 30.02(a)(1), (3) (Vernon 2003). The last element of the requested offense (theft or intent to commit theft) does not include proof of the same or less facts than the charged offense (sexual assault or attempted sexual assault). Compare Tex. Pen. Code Ann. § 31.03 (Vernon 2003) (theft) with Tex. Pen. Code Ann. § 22.011 (Vernon 2003) (sexual assault); see also Carlock v. State, 8 S.W.3d 717, 722 (Tex.App.-Waco 1999, pet. ref'd) (concluding that proving burglary with intent to commit theft is not same as, nor less than, proving an intent to commit a felony, i.e. robbery). The indictment specifically excludes theft as the underlying offense. We conclude the requested offense is not a lesser included of the offense charged. Even if we assumed the requested offense was a lesser included, the second prong requires some evidence that if appellant was guilty, he was guilty only of the lesser-included offense. In other words, there had to be some evidence from which the jury could rationally acquit the defendant of burglary with sexual assault or attempted sexual assault while convicting him of burglary with theft or attempted theft or intent to commit theft. See Hampton v. State, 109 S.W.3d 437, 440 (2003). While there is evidence in the record that appellant stole $20 during the burglary, there is also undisputed evidence that appellant, at a minimum, attempted to sexually assault D.W. Considering the evidence presented, we cannot conclude appellant's lesser-included offense was a valid rational alternative. We overrule the sixth point of error. We affirm the trial court's judgment.