No. 05-02-01377-CR
Opinion issued July 3, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-57483-1. AFFIRMED
Before Justices JAMES, FRANCIS, LANG.
Opinion By Justice James.
A jury convicted Brett D. Merrick of aggravated sexual assault and assessed punishment at twenty-four years in prison. In five points of error, appellant complains (a) the evidence was factually insufficient to support his conviction, (b) the trial court erred by instructing the jury on the availability of good time credit, and (c) article 37.07, section 4(a) of the code of criminal procedure is unconstitutional as applied to him. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On September 28, 2001, Katherine Bond took the bus to visit a bar called O'Reilly's. Bond frequently took the bus and was familiar with the schedule. Bond regularly met friends at O'Reilly's for happy hour. While at the bar, Bond drank six or seven beers. Appellant and Bond met, and the two began a conversation. At no time during their conversation did Bond and appellant discuss the possibility of sexual activity between the two of them that evening. During their conversation, Bond mentioned to appellant she needed to leave early to catch the last bus so she could get home. Appellant offered Bond a ride home so she could continue her stay at O'Reilly's. Bond accepted appellant's offer. From this point, the parties' versions of events differ significantly. Bond's Account
According to Bond's testimony, during the ride to her apartment, they had a conversation similar to the one they had at the bar, with no mention of sexual activity. When they arrived at Bond's apartment, appellant told her he had a six-pack of beer and asked if she would like to have another drink. Bond agreed and invited appellant into her apartment. Once inside the apartment, the conversation continued on the couch until appellant made a sexual advance toward Bond, which she rejected. Appellant then grabbed Bond by the throat, and she told him to leave her apartment. Appellant threw Bond to the floor. After Bond hit the floor, she attempted to crawl away, but appellant grabbed her legs and flipped her over. Appellant removed Bond's jeans and ripped off her panties. Appellant again grabbed Bond's throat, and she felt something very hard, like appellant's fist, repeatedly enter her vagina. Appellant then penetrated Bond's anus with his penis and had intercourse with her. After appellant penetrated her, Bond stated he applied lubrication to facilitate the act. During the intercourse, appellant repeatedly instructed Bond to be quiet or she would die. After appellant released Bond, she repeatedly tried to leave the apartment, but appellant prevented her escape. When appellant fell asleep on the couch, Bond left the apartment and called the police. When the police arrived, they found appellant asleep on Bond's couch. The police awoke appellant and arrested him. Appellant's Account
Appellant's testimony differs significantly from Bond's testimony. Appellant testified that when they reached Bond's apartment, appellant asked if she would like "to party naked." Bond agreed, and they undressed, sat on the couch, drank beer, kissed, and fondled one another. Bond briefly performed oral sex on appellant, and appellant performed oral sex on her. Appellant then asked Bond if she enjoyed anal sex. Bond stated that she did enjoy anal sex and subsequently consented to sexual intercourse with appellant. Prior to engaging in intercourse, appellant applied lubricant to Bond and his penis. When intercourse was over, appellant and Bond had another beer. Bond then asked appellant for seventy dollars to buy drugs for her chemical imbalance. Appellant stated he did not have the money, and Bond became very upset and hit him. He then grabbed her by the throat and pushed her to the floor. Appellant never threatened to kill Bond. Bond later apologized to appellant for her actions, and they fell asleep together on the couch. When the police arrived at Bond's apartment, they found appellant asleep on the couch. The police awoke appellant and arrested him. SUFFICIENCY OF THE EVIDENCE
In his first, second, and third issues, appellant complains the evidence is factually insufficient to support his conviction. In a factual sufficiency review we determine, "whether a neutral review of all the evidence, both for and against the finding, demonstrates the proof of guilt is so weak as to undermine confidence in the jury's determination or the proof of guilt, although adequate if taken alone is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We will reverse a fact finder's determination only if a manifest injustice occurred. Id. In conducting this analysis, we may disagree with the jury's determination even if the probative evidence supports the verdict. See Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000). However, this review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder. Id. Additionally, any evaluation of the evidence should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of the witnesses' testimony. Id. A person commits an aggravated sexual assault if the person intentionally or knowingly causes the penetration of the anus of another by any means without that person's consent, and by acts or words places the victim in fear that death or serious bodily injury will be immediately inflicted on any person, or threatens to cause death or serious bodily injury to the victim. Tex. Pen. Code Ann. § 22.021 (Vernon 2003). A sexual assault is without the consent of the other person if the actor compels the other person to submit or participate by using force or violence, or by threatening to use force or violence against the person, and the person believes the actor has the present ability to execute the threat. Id. § 22.011(b)(1), (2). In his first point of error, appellant contends the evidence is factually insufficient to show he penetrated Bond's anus without her consent. First, appellant argues Bond's testimony lacked corroboration from other testimony or evidence. There is no requirement that testimony be corroborated for it to be factually sufficient. Additionally, even if we disagreed with the jury's credibility assessment, we cannot substitute our determination of Bond's credibility for the jury's because the jury is the sole judge of her credibility. See Johnson, 23 S.W.3d at 6. Second, appellant argues his decision to remain in the apartment after the intercourse shows the intercourse was consensual. The fact appellant remained in the apartment after the assault does not show Bond consented to sexual intercourse with appellant. Bond testified appellant remained in the apartment to prevent her escape. Third, appellant argues Bond's intoxication prevented her from having a perfect recollection of events. The record does not show Bond's intoxication prevented her from understanding and appreciating what happened to her that night. Fourth, appellant contends Bond's anus would have been damaged had intercourse been non-consensual. In his testimony, Dr. McCord, the physician who conducted the rape examination, stated tissue damage might or might not occur in both consensual and non-consensual intercourse. Finally, appellant contends Bond consented to the anal intercourse because he facilitated the act by applying lubrication to Bond and his penis. Appellant's use of lubrication to facilitate anal intercourse does not show consent. We conclude the evidence is factually sufficient to show Bond did not consent to his penetration of her anus. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to show he placed Bond in fear of death or serious bodily injury. Appellant argues Bond's intoxication prevented her from accurately recalling and recounting the events of the evening. The record does not show Bond lacked the ability to understand and remember her situation and circumstances. Additionally, Officer Buggs, the officer who responded to the 911 call, testified Bond appeared extremely upset. Appellant also asserts Bond's intoxication prevented her from acting as reasonable person. Appellant claims his actions would not have caused a reasonable person to fear death or serious bodily injury. Again, the record does not support appellant's argument. The jury could find a reasonable person in Bond's position would have been placed in fear of death or serious bodily injury considering appellant grabbed Bond by the throat, threw her to the ground, and threatened to kill her. We conclude the evidence is sufficient to support the jury's finding appellant placed Bond in fear of death or serious bodily injury. We overrule appellant's second point of error. In his third point of error, appellant contends the evidence was factually insufficient to show he threatened to kill or seriously injure Bond. Bond testified appellant threatened to kill her. Appellant argues the value of Bond's testimony is reduced by his testimony denying making such a threat. "Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. . . ." Johnson, 23 S.W.3d at 8. In this case, the record does not "clearly reveal a different result is appropriate," so we must defer to the jury's determination to believe Bond's testimony over appellant's. Secondly, appellant argues the testimony regarding the alleged threat was introduced at trial as a result of a leading question and was merely an afterthought. To preserve a complaint for appellate review, the record must show a complaint was communicated to the trial court by a timely motion, request, or objection. Tex.R.App. P 33.1(a). The record does not contain any objection to the questions regarding appellant's threat to kill Bond. Therefore, appellant failed to preserve the error for our review. Next, appellant contends the record does not contain any evidence showing Bond told police about any threat during their initial investigation. Detective Shinn testified that victims are often unable to recall all the details of an incident upon initial inquiry. Finally, appellant argues his decision not to leave the apartment renders his account more credible. Appellant believes the evidence presented against him is too weak to support conviction. However, appellant offers no credible reason why the fact he remained in the apartment after the assault proves he did not threaten to kill or injure Bond during the attack. It is clear from the verdict the jury considered Bond's testimony more credible than appellant's testimony. We conclude the evidence is factually sufficient to show appellant threatened to kill or seriously injure Bond. We overrule appellant's third point of error. JURY CHARGE
In his fourth point of error, appellant complains the trial court committed reversible error by including the instruction required by article 37.07, section 4(a) in the jury charge. See Tex. Code Crim. Proc. Ann. 37.07, § 4(a) (Vernon Supp. 2003). Appellant argues the instruction is not applicable. The instruction informed the jury appellant might get his sentence reduced through a good time credit or parole; however, because the jury convicted appellant of aggravated sexual assault, he was not eligible to earn good-time credit. See Tex. Gov't Code Ann. § 508.148 (Vernon 2003). The Texas Legislature enacted legislation requiring the trial court to instruct the jury in the precise wording the statute recites. Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). Article 37.07, section 4(a) sets out the specific wording the trial court is to use. Id. The statute does not permit the trial court to vary from its language or to omit portions of it. Id. Therefore, no error was committed because the trial court instructed the jury according to statute. See id. We overrule appellant's fourth point of error. In his fifth point of error, appellant contends article 37.07, section 4(a) is unconstitutional as applied to him because it "implicates his right to due process." In Luquis, the Texas Court of Criminal Appeals addressed a similar situation and concluded appellant's due process rights were not violated by article 37.07, section 4(a) when the trial court instructed the jury on the availability of early release and parole even though the appellant was ineligible for good-time credit. See id. at 366. Additionally, appellant could have received a ninety-nine-year sentence; however, the jury sentenced him to only twenty-four years. Appellant has failed to show this jury unconstitutionally misapplied the concept of good conduct time to assess a higher sentence as a result of the instruction, thereby denying him due process. See id. at 368. We overrule appellant's fifth point of error. We affirm the trial court's judgment.