Opinion
No. 05-15-01277-CR
03-07-2017
FELIPE DE JESUS BLANCO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-80771-2015
MEMORANDUM OPINION
Before Justices Fillmore, Brown, and Richter
Opinion by Justice Richter
The Honorable Martin Richter, Justice of the Court of Appeals for the Fifth District of Texas at Dallas, Retired, sitting by assignment.
A jury convicted Felipe Blanco of aggravated sexual assault and sentenced him to seventy years in prison and a probated fine of $10,000. In three issues, appellant challenges the trial court's jury charges. Appellant contends the trial court erred under state and federal law in failing to instruct the jury that it must unanimously agree on which aggravating factor elevated the offense to aggravated sexual assault. Appellant also contends the trial court erroneously defined aggravated sexual assault in two of the jury charges. In a cross-point, the State contends the judgment should be modified to properly reflect that appellant's conviction requires him to comply with sex offender registration requirements. We affirm the trial court's judgment as modified.
I. BACKGROUND
Appellant was charged with aggravated sexual assault in a single-count indictment with fifteen paragraphs detailing the various alleged assaults and aggravating factors. Complainant, J.V., testified that she and appellant were cousins and close friends until April 29, 2014, the day appellant sexually assaulted her. J.V. testified that appellant choked her, tied her hands together with zip ties, cut off her clothing with scissors, and threatened to hurt or kill her. She testified that over a period of approximately six hours appellant penetrated her vaginally with his penis, penetrated her mouth with his penis, performed oral sex on her, and penetrated her vagina with his fingers and a cucumber. J.V. testified that any time she screamed, appellant threatened to hit her. At times, appellant blindfolded and gagged her; he also zip tied her feet. She stated that appellant took photographs and videos of her and threatened to post the images online if she ever told anyone what he had done.
Testifying in his own defense, appellant admitted that he and J.V. had sexual intercourse, but he insisted the sex was consensual and that J.V. was a willing participant. He admitted choking her in a "sexual manner" and binding her hands with zip ties. He admitted cutting off her shirt and bra with scissors. He testified that J.V. never objected to what he was doing, including his use of the cucumber. Appellant testified that after having sexual intercourse two or three times, he and J.V. talked and took a nap together.
During the charge conference, the State proposed using three separate jury charges to ensure that the jury unanimously determined whether appellant: (1) penetrated the victim's female sexual organ by any means, (2) penetrated her mouth with his sexual organ, or (3) contacted her sex organ with his mouth. According to the State's proposal, the jury was asked for a separate verdict on each of these three forms of sexual assault. The charge pertaining to the penetration of the victim's female sexual organ also required the jury to unanimously agree on what object was used—appellant's sexual organ, an unknown object, or appellant's fingers. In each of the three separate charges, the jury was charged on aggravating factors that could elevate that specific sexual assault offense to aggravated sexual assault. Each charge also provided the jury with the option of convicting appellant of the lesser-included offense of sexual assault. Defense counsel had no objection to either the use of three separate jury charges or the content of the proposed charges. The jury ultimately returned three separate guilty verdicts for aggravated sexual assault, one for each of the three jury charges submitted for their consideration.
Appellant was convicted of aggravated sexual assault and sentenced to seventy years in prison and a probated fine of $10,000. This appeal followed.
II. APPLICABLE LAW
A. Standard of Review
Appellate review of purported error in a jury charge involves a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first determine if the jury charge was erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error exists, we then determine whether the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). When, as in this case, the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant 'has not had a fair and impartial trial.'" Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). Egregious harm exists when the record shows that a defendant has suffered actual, rather than merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). Egregious error consists of error affecting the very basis of the case, depriving the defendant of a valuable right, or vitally affecting a defensive theory. Id. (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). We assess harm in light of the entire jury charge, the state of the evidence, including contested issues, the arguments of counsel, and any other relevant information revealed by the record as a whole. Id. B. Aggravated Sexual Assault
A person commits sexual assault if the person intentionally or knowingly: "(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; (B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor." TEX. PENAL CODE ANN. § 22.011(a)(1)(A), (B), (C) (West 2011). There are a number of factors by which the offense may be elevated to aggravated sexual assault, including: (1) causing serious bodily injury or attempting to cause the death of the victim; (2) by acts or words placing the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury or kidnapping will be imminently inflicted on any person; or (3) using or exhibiting a deadly weapon during the assault. Id. § 22.021(a)(2)(A)(i), (ii), (iv) (West Supp. 2016).
III. DISCUSSION
In his first issue, appellant challenges the jury charges under state law, asserting he was egregiously harmed because the trial court did not treat the disjunctive list of aggravating factors in section 22.021(a)(2) as a list of elemental facts requiring a unanimous decision by the jury. Appellant's second issue raises the same challenge under federal law. In his third issue, appellant contends he was egregiously harmed because two of the jury charges omitted pertinent language in the definition of one of the possible aggravating factors. Appellant contends the erroneous definition allowed the jury to believe that if appellant placed the victim in fear of any criminal offense whatsoever, he had committed aggravated sexual assault. Appellant did not object to these alleged jury-charge errors at trial. Therefore, we will reverse only if the alleged error constitutes fundamental error such that appellant was denied a fair and impartial trial. See Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171). We address each alleged jury-charge error separately. A. Unanimity on Aggravating Factors - State Law
Appellant challenges the jury charges under state law, asserting he was egregiously harmed because the trial court did not treat the disjunctive list of aggravating factors in penal code section 22.021(a)(2) as a list of elemental facts requiring a unanimous decision by the jury. Appellant acknowledges that the jury charges required the jury to unanimously determine whether appellant committed the offense of sexual assault. But appellant argues that in addition, the jury should have been instructed to unanimously determine which aggravating factor transformed the sexual assault into an aggravated sexual assault.
Our constitution requires that the jury be unanimous on the essential elements of the offense of conviction. Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (unanimous verdict helps ensure each juror is convinced beyond reasonable doubt that prosecution proved each essential element of offense). "Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Ngo, 175 S.W.3d at 745. When assessing a jury-unanimity challenge, we examine the plain language of the relevant statute to determine the elements of the offense and whether the legislature has created a single offense with multiple or alternative methods of commission. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (citing State v. Johnson, 243 Wis.2d 365, 627 N.W.2d 455, 459-60 (2001)). This requirement of jury unanimity is not violated by a jury charge that presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense. Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo, 235 S.W.3d at 714); see also Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011) ("The jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed.").
Appellant argues that the factors listed in penal code subsection 22.021(a)(2) are essential elements of the offense of aggravated sexual assault and are not merely the manner and means of how the offense was committed. Thus, according to appellant, the jury should have been required to unanimously determine which aggravating factor elevated each sexual assault offense to aggravated sexual assault. Appellant contends that Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) supports his argument that the disjunctive list of acts in subsection 22.021(a)(2) are elemental. Stuhler involved a prosecution for injury to a child. On appeal, the court was tasked with deciding whether the jury charge should have required the jury to make a unanimous finding whether the appellant caused the injury by his action or by his omission, either of which was an acceptable theory under penal code section 22.04. See Stuhler, 218 S.W.3d at 718. Noting that the offense of injury to a child was a "result of conduct" offense, the court held that whether appellant caused the injury by an act or an omission was not elemental because the statute does not make the "nature of conduct" of any consequence. Id. Applying the "eighth grade grammar test" to identify the essential elements, or gravamen of the offense, on which the jury must be unanimous, the Stuhler court determined that the jury should have been required to unanimously agree whether appellant caused serious mental deficiency, impairment, or injury (the resulting injury). Id. Stuhler is distinguishable from the case at hand. The Stuhler opinion does not analyze a "nature of conduct" offense such as aggravated sexual assault. Further, the Stuhler opinion does not analyze penal code subsection 22.021(a)(2) and whether the aggravating factors set forth therein are elements of the offense of aggravated sexual assault.
Appellant argues that Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999) and Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) likewise hold that the disjunctive list of factors listed in subsection 22.021(a)(2) are elemental. We do not agree that either case supports appellant's assertion. In Vick, the defendant was indicted for aggravated sexual assault under penal code section 22.021. Vick, 991 S.W.2d at 832-33. The Vick court considered whether double jeopardy protection applied to prevent multiple prosecutions based on alleged violations of the same statute during the same criminal transaction. Id. at 831. Stating that section 22.021 is a conduct-oriented offense in which the legislature criminalized very specific conduct of several different types, the Vick court analyzed subsection 22.021(a)(1) and concluded that each subsection was a separate and distinct statutory sexual assault offense. Id. at 833. The Vick court stated: "[a]n offense is complete when a person commits any one of the proscribed acts." Id. The Vick opinion does not discuss the aggravating factors listed in subsection 22.021(a)(2). Nevertheless, appellant claims that Vick supports his argument that subsection 22.021(a)(1) is grammatically indistinguishable from subsection 22.021(a)(2), and therefore, the disjunctive list of factors in (a)(2) is also elemental. But this argument is not supported by or addressed in the Vick opinion. And we do not agree that the mere use of the disjunctive "or" between the aggravating factors listed in subsection (a)(2) transforms the factors into elements of the offense.
In Young, the court did not consider the offense of aggravated sexual assault or penal code section 22.021. The Young case involved a registered sex offender who failed to register as required after moving to a new residence. See Young, 341 S.W.3d at 419. The Young court discussed the statutory language that determines whether a crime is a "result of conduct," "nature of conduct," or "circumstances of conduct" offense. Id. at 423-24. According to Young, many sex offenses are "nature of conduct" offenses, where the act itself is the gravamen of the offense. Id. at 423. The Young court stated that "nature of conduct" offenses "generally use different verbs in different subsections, an indication that the Legislature intended to punish distinct types of conduct." Id. at 424. And as Vick makes clear, this analysis has been applied to subsection 22.021(a)(1) to conclude that each subsection was a separate and distinct statutory sexual assault offense. See Vick, 991 S.W.2d at 832-33. None of the cases cited by appellant address the disjunctive list of aggravating factors listed in subsection 22.021(a)(2), and none of the cases conclude that the aggravating factors are essential elements of the offense of aggravated sexual assault.
The conduct defined in subsection 22.021(a)(1)(A) constitutes the gravamen of the offense of aggravated sexual assault of an adult. TEX. PENAL CODE § 22.021(a)(1)(A); see Nickerson v. State, 69 S.W.3d 661, 671 (Tex. App.—Waco 2002, pet. ref'd); see also Vick, 991 S.W.2d at 833 (construing subsection 22.021(a)(1)(B)); Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008) (construing aggravated assault statute). The court of criminal appeals has held that non-consensual oral, vaginal, and anal penetration are distinct offenses under section 22.021, and thus a jury must be unanimous in its determination of what form of penetration occurred. Gonzales v. State, 304 S.W.3d 838, 846-49 (Tex. Crim. App. 2010). The aggravating factors defined in subsection 22.021(a)(2)(A) are merely the manner or means by which a proscribed sexual assault becomes the more serious aggravated offense. See Nickerson, 69 S.W.3d at 671; see also Landrian, 268 S.W.3d at 540; Miranda v. State, 391 S.W.3d 302, 310-11 (Tex. App.—Austin 2012, pet. ref'd). The application paragraph of the jury charges instructed the jurors that they could convict appellant of aggravated sexual assault if they found he committed sexual assault and (1) caused serious bodily injury or attempted to cause the death of the victim in the course of the same criminal episode, (2) by acts or words placed the victim in fear that death or serious bodily injury would be imminently inflicted on any person, or (3) used or exhibited a deadly weapon in the course of the same criminal episode. The charges, in other words, submitted the aggravating features of the statute disjunctively. Whether appellant caused serious bodily injury, attempted to cause J.V.'s death, placed J.V. in fear of death or serious bodily injury, or used a deadly weapon, only a single crime of aggravated sexual assault was committed. See Lourenco v. State, Nos. 05-13-01092-CR & 05-13-01114-CR, 2015 WL 356429, at *9 (Tex. App.—Dallas Jan. 28, 2015, no pet.) (not designated for publication); Davis v. State, No. 05-05-01694-CR, 2007 WL 122138, at *6 (Tex. App.—Dallas Jan. 18, 2007, no pet.) (not designated for publication). We conclude the jury was not required to unanimously agree which aggravating factor was present in the aggravated sexual assault because the various aggravating factors did not constitute distinct offenses. See Miranda, 391 S.W.3d at 311. We overrule appellant's first issue. B. Unanimity on Aggravating Factors - Federal Law
Appellant also challenges the jury charges under federal law, asserting he was egregiously harmed because the trial court did not treat the disjunctive list of aggravating factors in penal code section 22.021(a)(2) as a list of elemental facts requiring a unanimous decision by the jury. He asserts that the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution define an "element" of an offense to be any fact that increases the mandatory minimum sentence or increases the penalty for a crime beyond the prescribed statutory maximum. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Therefore, according to appellant, the disjunctive list of aggravating factors in section 22.021(a)(2) are necessarily "elements" of the offense because they increase both the minimum and maximum potential punishment for the offense of sexual assault.
The State contends appellant places too much emphasis on the use of the term "element," and further contends that Apprendi and Alleyne cannot be read so broadly. Apprendi and Alleyne concluded that any fact that increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155; Apprendi, 530 U.S. at 490. The State does not dispute that the existence of an aggravating factor distinguishes the offense of aggravated sexual assault (with a higher punishment range) from sexual assault (with a lower punishment range). But the State contends the procedural safeguards of Apprendi were met in this case because the jury charges submitted the aggravating factors to the jury and required the jury to determine whether the State proved aggravated sexual assault beyond a reasonable doubt. The State argues, and appellant concedes, that Apprendi and Alleyne have no further application here because neither case addresses jury unanimity.
The Sixth Amendment to the United States Constitution provides a right to a unanimous jury verdict in federal criminal trials. Andres v. United State, 333 U.S. 740, 748 (1948); see Sanchez v. State, 23 S.W.3d 30, 39 (Tex. Crim. App. 2000). In addition, the Sixth Amendment is applicable to the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). However, the Sixth Amendment, as applied to the states through the Fourteenth Amendment, does not require unanimity in state trials. Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (the Sixth Amendment does not require a conviction by a unanimous verdict in state court); see Ex parte Morales, 416 S.W.3d 546, 549 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex. App.—Dallas June 30, 2010, pet. ref'd) (not designated for publication). Accordingly, we address appellant's claimed right to unanimity under Texas law only. Appellant's second issue is overruled. C. Erroneous Definition of Aggravated Sexual Assault
In his third issue, appellant complains he was egregiously harmed by an erroneous definition of aggravated sexual assault in the abstract portion of two of the jury charges. Appellant complains about the italicized language below:
Our law provides that a person commits the offense of Aggravated Sexual Assault if the person commits the offense of Sexual Assault as defined herein, and:Paragraph (2) of the instruction did not track the complete statutory definition of the aggravating factors. According to the statute, the complete definition states: "by acts or words places the victim in fear that any person will become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person..." TEX. PENAL CODE 22.021(a)(2)(A)(ii). Appellant suggests that omitting the language "under Section 20A.02(a)(3), (4), (7), or (8)," could have caused the jury to believe that if appellant placed the victim in fear of any criminal offense whatsoever, he had committed aggravated sexual assault.
(1) causes serious bodily injury or attempts to cause the death of the victim in the course of the same criminal episode, or;
(2) by acts or words places the victim in fear that any person will become the victim of an offense or that death, serious bodily injury will be imminently inflicted on any person, or;
(3) uses or exhibits a deadly weapon in the course of the same criminal episode.
The State concedes there was error in the abstract portion of two of the jury charges—the charge for penetration of J.V.'s mouth with appellant's sexual organ and the charge for contacting J.V.'s sex organ with appellant's mouth. But the State asserts there was no error in the jury charge for penetration of J.V.'s female sexual organ by any means, and appellant's conviction can rest solely on that separate verdict. The State also contends it is unlikely that the error in the other two jury charges had any effect on the verdict because the error was only in the abstract portions of the jury charges. The application portions of the jury charges limited the jury's consideration to properly defined aggravating factors. In addition, the error affected only one of the possible aggravating factors; the other aggravating factors listed were not affected by the error. The State contends the jury could have found the assault was aggravated because of the other aggravating factors.
Not all jury charge errors require reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Because appellant did not object to the erroneous charges, he is required to show that the error was "fundamental" and that he suffered egregious harm before the judgment may be reversed. Barrios, 283 S.W.3d at 350. A proper application paragraph does not cure any error in the instruction, but it does factor into the harm analysis. Bazanes v. State, 310 S.W.3d 32, 39 (Tex. App.—Fort Worth 2010, pet. ref'd). "Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).
Because the application paragraphs of the jury charges limited the jury's consideration to properly defined aggravating factors, we conclude that appellant was not egregiously harmed by the erroneous definition in the abstract portion of two of the jury charges. Id. We resolve appellant's third issue against him. D. Modification of the Judgment
We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.—Dallas 2002, pet. ref'd). Our authority to reform judgments is not limited to mistakes of a clerical nature. See Bigley, 865 S.W.2d at 27. Nor is it dependent upon the request of a party. Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). "Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record." Id. at 529.
The judgment incorrectly states that sex offender registration requirements do not apply to appellant. Appellant's conviction for aggravated sexual assault is among those defined as a "[r]eportable conviction or adjudication" for purposes of the sex offender registration statute. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A) (stating, in part, that a conviction based on a violation of section 22.021, aggravated sexual assault, is a reportable conviction or adjudication for the purpose of sex offender registration). As a person who has a reportable conviction or adjudication, appellant is subject to the registration requirements of that program. See id. art. 62.051.
Because there is sufficient evidence to support the conviction in this case, we modify the judgment to show that the sex offender registration requirements do apply to appellant. See TEX. R. APP. P. 43.2(b); Asberry, 813 S.W.2d at 529-30 (appellate court has the authority to modify incorrect judgments sua sponte when the necessary information is available to do so); see also Lourenco, 2015 WL 356429, at *10 (modifying judgments to show applicability of sex offender registration requirements because evidence was sufficient to support convictions); Ruiz v. State, Nos. 05-12-01703-CR & 05-12-01704-CR, 2014 WL 2993820, at *12 (Tex. App.—Dallas June 30, 2014, no pet.) (not designated for publication) (same); Medlock v. State, No. 05-11-00668-CR, 2012 WL 4125922, at *1-2 (Tex. App.—Dallas Sept. 20, 2012, no pet.) (mem. op., not designated for publication) (same).
IV. CONCLUSION
As modified, we affirm the trial court's judgment.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 151277F.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-80771-2015.
Opinion delivered by Justice Richter. Justices Fillmore and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to state that sex offender registration requirements apply to defendant. As REFORMED, the judgment is AFFIRMED. Judgment entered this 7th day of March, 2017.