Summary
holding prosecutor's voir dire question, whether "the venire . . . would require physical evidence or more than one witness to convict," not fundamental error
Summary of this case from Thomas v. StateOpinion
No. 05-02-01235-CR
Opinion Filed June 11, 2003 Do Not Publish
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-32697-MW. AFFIRM
Before Justices BRIDGES, FITZGERALD, and O'NEILL.
OPINION
Appellant appeals his conviction for sexual assault. After finding appellant guilty, the jury assessed punishment at thirteen years' confinement. In five issues, appellant generally contends (1) the prosecutor made an egregious remark during voir dire, (2) the prosecutor erroneously attempted to impeach appellant, (3) the evidence is factually insufficient to support his conviction, and (4) the trial court's charge was fundamentally defective. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for sexual assault. Specifically, the indictment alleged appellant did "intentionally and knowingly cause the penetration of the female sexual organ of [S.D.] . . . without the consent of [S.D.], by means of an object, to wit: the sexual organ and finger of [appellant]." At trial, S.D. testified that she met appellant, a taxi driver, through some friends. On the night of the offense, S.D. saw appellant at the horse stables where she boards her horse. S.D. was at the stables that night to watch over her sick horse. Appellant agreed to stay with S.D. to keep her company. Appellant and S.D. spent most of the evening drinking and talking. Eventually, S.D. and appellant sat in appellant's taxi, a mini van, to watch television. After they watched television for a while, appellant grabbed S.D.'s "crotch" and started kissing her. S.D. tried to push appellant away, but he got on top of her. Appellant then "forced" himself on her, penetrating S.D.'s vagina with his hand and his penis. She said it was painful, particularly because she was having an outbreak of genital herpes at the time. During the assault, someone pulled up to the stables to clean a "Port-a-Potty" located there. S.D. conceded she did not cry for help. She explained she was trying to get appellant off of her and she did not have time to think. Moreover, the person in the vehicle could not have heard her anyway. The penetration was brief and when S.D. was finally able to kick appellant off of her, appellant told her he had "fucked up" and offered to give her a ride home. S.D. responded she did not need his help and drove herself home. S.D. considered going to the hospital, but did not because she did not have insurance. She also did not initially go to the police because she did not know if they would believe her. A few days later, after talking to some friends, S.D. reported the offense. After she went to the police, S.D.'s mother took pictures of S.D.'s arms that showed numerous bruises. S.D. testified she also had bruises on her thighs, but she did not want her mother taking pictures of that area. Officer Serena Henderson testified that S.D. reported the offense to her. The officer confirmed that S.D. had bruises on her arms and her inner thighs a few days after the assault. Mary Claire Robertson testified S.D. and appellant were both friends of hers. Robertson was living across the street from appellant at the time of the offense. Shortly after the offense, appellant requested to speak to Robertson and she agreed. Appellant appeared intoxicated and told Robertson that he had "fucked up" and "forced himself' on S.D. sexually. Appellant specifically admitted to penetration. Appellant testified in his own defense and admitted having sexual intercourse with S.D., but claimed it was consensual. On that night, appellant and S.D. were at the stables drinking and talking. Eventually, on S.D.'s suggestion, they got into the back seat of appellant's van and began kissing. They became more intimate and began to "make love," but S.D. cried out in pain. Appellant asked her what was wrong, and she responded she was having a herpes outbreak and asked appellant to be more gentle. Appellant tried again, but stopped when she again cried out in pain. Because S.D. had been drinking, appellant offered to drive her home, but S.D. said she was fine to drive. Appellant denied ever telling anyone that he had forced himself on S.D. After hearing the evidence, the jury found appellant guilty of sexual assault. This appeal followed. In the first issue, appellant complains of a remark the prosecutor made during voir dire. During voir dire, the prosecutor questioned the venire regarding whether they would require physical evidence or more than one witness to convict. One venireperson responded that he could not find a person guilty without evidence. The prosecutor responded that, to convict, the jury would have to have evidence and would have to believe that evidence beyond a reasonable doubt. The prosecutor then stated "[i]f we had no evidence, we wouldn't be here today." Appellant objected to the last remark, and the trial court sustained the objection. Appellant did not request any further relief. Appellant concedes that by failing to obtain an adverse ruling, he did not preserve his complaint for appellate review in accordance with rule 33.1(a) of the rules of appellate procedure. See Tex.R.App.P. 33.1(a); Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992). Appellant nevertheless asserts he was not required to preserve error. Appellant first asserts that, in this case, the "normal rules of error preservation were simply not in play." To support this assertion, appellant relies on a statement the trial court made to the jury before trial began that the jury was not to consider evidence if the trial court sustained one of the party's objections to the evidence. We disagree with appellant's contention that this statement can be construed as an instruction to the parties that they were not required to preserve error for appellate review. Appellant next asserts the prosecutor's remark was so egregious as to constitute fundamental error for which he was not required to preserve error. See, e.g., Blue v. State, 41 S.W.3d 129, 131-32 (Tex.Crim.App. 2000). We again disagree with appellant's contention. Almost every right, constitutional or statutory, may be waived by the failure to object. Borgen v. State, 672 S.W.2d 456, 460 (Tex.Crim.App. 1984); Lee v. State, 952 S.W.2d 894, 898 (Tex.App.-Dallas 1997, no pet.). After reviewing the complained-of remark, we cannot conclude it was so egregious as to deprive appellant a fair and impartial trial. See, e.g., Murchison v. State, 93 S.W.3d 239, 262 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Oulare v. State, 76 S.W.3d 231, 233 (Tex.App.-Amarillo 2002, no pet.). Therefore, appellant was required to preserve error to raise this complaint on appeal. We resolve the first issue against appellant. In the second issue, appellant complains that the prosecutor erroneously attempted to impeach appellant. Specifically, appellant complains that the prosecutor asked him on cross-examination "[i]f you're telling the truth about this entire enterprise, why on earth are we hear? Doesn't that seem strange to you?" According to appellant, this question violated the presumption of innocence. Appellant did not object to the complained-of question. Nevertheless, he again asserts the question was so egregious as to constitute fundamental error. We disagree and conclude appellant was required to object to the question to preserve this issue for appellate review. See, e.g., Murchison, 93 S.W.2d at 262; Oulare, 76 S.W.3d at 233. We resolve the second issue against appellant. In the third issue, appellant contends he is entitled to a new trial because of the cumulative effect of the above two errors. Finding no error, this issue is also without merit. See Turner v. State, 87 S.W.3d 111, 118 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1760 (2003); Brown v. State, 92 S.W.3d 655, 669 (Tex.App.-Dallas 2002, pet. granted). We resolve the third issue against appellant. In the fourth issue, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. In this issue, appellant asserts the evidence is factually insufficient to show any contact was without S.D.'s consent. Appellant does not dispute S.D.'s testimony supports the jury's finding that the contact was without consent. However, he asserts S.D. lacked credibility because the words she used to describe the assault showed a "cavalier" attitude toward the assault. Specifically, S.D. testified she gave appellant a kick to "get his ass on out the door" of the taxi and testified that during the assault she told appellant to "get the fuck" away from her. Appellant also asserts S.D. lacked credibility because she did not try to get help from the "Port-a-Potty" attendant that drove by during the assault. Finally, appellant relies on (1) evidence that he and S.D. were drinking and enjoying spending time together just before the alleged assault, (2) the lack of physical or medical evidence to support S.D.'s allegations, (3) S.D.'s failure to seek medical attention after the assault, and (3) S.D.'s failure to take pictures of the bruises she claimed to suffer on her thighs. We begin by noting that we cannot agree with appellant's assertion that the cold appellate record shows S.D.'s attitude toward the offense was "cavalier." Moreover, the State presented evidence from appellant's neighbor that appellant admitted "forcing" himself on S.D. The State also presented a police officer's testimony that S.D. did have bruises on her inner thighs after the assault. After reviewing all the evidence in a neutral light, we cannot conclude (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. We resolve the fourth issue against appellant. In the fifth issue, appellant complains of charge error. The trial court's charge instructed the jury to find appellant guilty if it found appellant caused the penetration of S.D.'s vagina "without her consent." However, the charge did not provide any of the statutory definitions in which contact can be without consent. See Tex. Pen. Code Ann. § 22.011(b) (Vernon 2003). According to appellant, the charge's failure to define lack of consent constituted reversible error. We disagree. Because appellant did not object to the omission of the statutory definition, we reverse only if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Specifically, we reverse only if the error was so harmful that appellant was denied a fair and impartial trial. Tear v. State, 74 S.W.3d 555, 562 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 123 S.Ct. 1753 (2003). Egregious harm consists of errors affecting the case's foundation, or errors denying the defendant a valuable right, significantly affecting a defensive theory, or making the case for guilt clearly and substantially more compelling. Id. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information from the record. Id. After reviewing the entire record in this case, we conclude appellant did not suffer egregious harm. Contrary to appellant's assertion, the charge did not did not omit an element of the offense. Rather, the charge specifically required the jury to find the penetration was without S.D.'s consent. The charge did however omit the statutory definition of "without consent." The statutory definition applicable here is that contact is without consent if "the actor compels the other person to submit or participate by the use of physical force or violence." See Tex. Pen. Code Ann. § 22.011(b)(1) (Vernon 2003). According to S.D., appellant committed the offense by overpowering her and thus the contact was compelled by physical force or violence. Appellant, on the other hand, claimed the contact was fully consensual. The only issue the jury had to determine was which version of the facts to believe. If the jury believed appellant, it could not have found appellant guilty under any commonly understood meaning of "without consent." But, by finding appellant guilty, the jury necessarily believed S.D. and thus that appellant compelled the penetration by physical force. Consequently, we conclude appellant did not suffer egregious harm. We resolve the fifth issue against appellant. We affirm the trial court's judgment.