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allowing recording when some of defendant's statements were inaudible and there was conflicting testimony at hearing from defendant and detective about defendant's statements, because defendant was provided warnings and waived them and never made clear request for lawyer
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No. 05-09-01343-CR
Opinion Filed August 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 422nd Judicial District Court Kaufman County, Texas, Trial Court Cause No. 27692-422.
Before Justices O'NEILL, FitzGERALD, and LANG.
OPINION
Christian Andress Ojeda appeals the trial court's judgments rendered after a jury trial, convicting him of aggravated kidnapping (count 1), two counts of aggravated sexual assault (counts 2 and 3), aggravated assault with a deadly weapon (count 4), and assault involving family violence (count 5), all enhanced by two prior convictions. The jury found that Ojeda used a deadly weapon during the commission of all five offenses, the enhancements true, and assessed Ojeda's punishment at ninety-nine years of imprisonment for the offenses of aggravated kidnapping (count 1) and the two counts of aggravated sexual assault (counts 2 and 3), and imprisonment for life for the offenses of aggravated assault with a deadly weapon (count 4) and assault involving family violence (count 5). Ojeda raises fourteen issues on appeal that argue eight points: (1) the evidence is insufficient to prove his convictions for aggravated sexual assault (count 3), aggravated assault with a deadly weapon (count 4), and assault involving family violence (count 5), and the trial court erred when it denied his motions for an instructed verdict with regard to the offenses of aggravated kidnapping (count 1), aggravated sexual assault (count 3), and aggravated assault with a deadly weapon (count 4); (2) the trial court erred when it denied his trial counsel's motion to withdraw; (3) the trial court erred when it denied his motion for a mistrial; (4) the trial court erred when it denied his motion to suppress his oral statement; (5) the trial court erred when it denied his motion for the State to elect on which charge it was relying for conviction; (6) the trial court erred when it overruled his objections to the admissibility of testimony and evidence; (7) the trial court erred when it failed to sua sponte include in the jury charge all of the elements of the statute that pertained to the offense of aggravated sexual assault (count 2); (8) his right to be free from double jeopardy was violated when the aggravated assault with a deadly weapon charge (count 4) was submitted to the jury because it is a lesser included offense of the aggravated kidnapping (count 1) and aggravated sexual assault (counts 2 and 3) charges. We decide all of Ojeda's issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shannon Gullion met Ojeda at a drug house and they began dating. Their relationship was stormy and Ojeda would sometimes hit Gullion. Eventually, they lived together in a trailer that later burned down. After the fire, they sought help from the pastor of a church who let them reside at the church's parsonage. Then, Gullion and Ojeda ended their relationship. Ojeda moved his belongings out of the parsonage and took the money that the church had given them. Also, Gullion let him have her car and the cellular telephone. Some days later, Ojeda returned to the parsonage and told Gullion that he wanted to work things out. He took her to the motel where he was staying and gave her some gifts. Then, he began to accuse her of cheating and told Gullion that he was going to drive her home. During the drive, Ojeda hit Gullion, giving her a black eye. In response, Gullion kicked the car's gear shift, breaking it, and the car would not restart. Ojeda's nephew, Jeremy Ojeda, came at Ojeda's request to help and left with Gullion. Ojeda stayed at the motel. Gullion decided to stay the night at Jeremy Ojeda's house. In the middle of the night, Ojeda arrived at his nephew's house where an argument began between Gullion and Ojeda. Ojeda tried to drag Gullion out of the house by her hair and "busted" Gullion's lip, but Jeremy Ojeda intervened and made Ojeda leave. The next day, Gullion went to the Genesis Center, which provides care and shelter for victims of domestic violence, and got a pamphlet. When she returned to the parsonage, she found Ojeda sleeping in her bedroom. When Ojeda woke, Gullion asked him to leave and he said that he would. Gullion also told Ojeda that they would not be able to work things out, she believed that she needed to go to the Genesis Center, and she showed him the pamphlet that she had obtained earlier that day. Ojeda became angry. Gullion grabbed her purse and tried to leave, but Ojeda dragged her back into the parsonage by her hair. Once inside, he began punching and kicking Gullion, and calling her a "lying, cheating whore." Ojeda told Gullion that if she admitted to cheating, he would stop hitting her. So Gullion "made up things." Ojeda stopped hitting Gullion, dragged her to the bathroom, threw her in the shower with her clothes on, and told her to take a shower because she had blood all over her. When Gullion got out of the shower, she still had blood on her so Ojeda dragged Gullion by the hair to the other bathroom in the parsonage, told her to wash, and left the room. Gullion was trying to undress to wash when Ojeda suddenly returned, grabbed her by the throat, threw her against the shower wall, and told her that "he was gonna kill [her]." Ojeda hit Gullion and knocked out some of her teeth. While in the process of hitting Gullion, Ojeda hurt himself and stopped hitting her. Gullion went to her bedroom and sat on the bed. Ojeda saw that there was blood throughout the parsonage and told Gullion to get on her hands and knees to clean it up. Gullion complied, but her eyes were swollen and she could not see very well. While she was attempting to clean up the blood, Ojeda stomped on her hand, breaking her finger. Ojeda calmed down and began apologizing to Gullion. Then, he told her that he needed a car to take her away because church services would be starting in the morning and he did not want anyone to see her. Gullion agreed to walk with him to the car in the hope that someone would see her and help. Instead, Ojeda and Gullion walked approximately a mile in the dark to the burned trailer where they had lived. While they walked, Ojeda became angry again and pushed Gullion several times. At the trailer, Ojeda told Gullion he wanted to have sex with her. Gullion did not want to, but feared what would happen if she told him "no." After Ojeda had sex with Gullion, she fell asleep on a burned mattress in the trailer. Ojeda woke Gullion and asked her what time church services were over and she told him. Gullion went back to sleep, but Ojeda would periodically wake her, accuse her of cheating, and hit her in the face. After the church services were over, Ojeda woke Gullion and told her that they were going back to the parsonage. Ojeda and Gullion walked back to the parsonage. At the parsonage, Ojeda made Gullion some soup. Then, he began to accuse her of cheating and demanded sex. He ordered her to get on all fours and told her that he was "gonna take it a different way this time." Gullion begged him not to do that, but he hit her, kicked her in the tail bone, and penetrated her anus. Gullion kept trying to get away from Ojeda so he stopped and instead, continued by penetrating her vaginally. Then, Ojeda told Gullion to lay down and "shut up" because she was crying. Ojeda began repeatedly calling his uncle and a friend stating that he "messed up" and Gullion "could put him in jail." Ojeda wanted his uncle to pick them up at the parsonage and his friend to let Ojeda keep Gullion at the friend's house. The next day, Gullion convinced Ojeda that he should have a member of the church drive him to their car. At Ojeda's request, Dennis Jones arrived to take him to their car. Ojeda made Gullion promise that she would be at the parsonage when he returned and, without letting Dennis Jones into the parsonage, he left. As soon as Ojeda was gone, Gullion put on her shoes and ran to the church. In the church, Gullion found a telephone and called Sheila Jones, Dennis Jones's wife. Gullion asked Sheila Jones to take her to the emergency room. Sheila Jones told Gullion that she would call 9-1-1. Then, Gullion telephoned her mother. However, before the police arrived, Ojeda returned in their car by himself, went into the parsonage, and discovered that Gullion had left. Gullion continued to hide in the church. After a short while, Ojeda drove away. The police arrived and Gullion went to the hospital in Kaufman, Texas. At the hospital, it was determined that Gullion had multiple fractures to her face, a broken finger, three missing teeth, bite marks, bruising around the anus that extended into the rectum, and bruising and striations around her neck. Because of the nature and extent of her injuries, Gullion was transported to Parkland Memorial Hospital in Dallas, Texas. A few days later, the police arrested Ojeda at a "dope house." During his interview with the police, Ojeda admitted to hitting Gullion, but denied kidnapping or sexually assaulting her. Ojeda claimed the sex had been consensual. Ojeda was indicted for aggravated kidnapping (count 1), two counts of aggravated sexual assault (counts 2 and 3), aggravated assault with a deadly weapon (count 4), and assault involving family violence (count 5). After a trial, the jury found him guilty of all of the offenses. The jury assessed Ojeda's punishment at ninety-nine years of imprisonment for the offenses of aggravated kidnapping (count 1) and the two counts of aggravated sexual assault (counts 2 and 3), and imprisonment for life for the offenses of aggravated assault with a deadly weapon (count 4) and assault involving family violence (count 5).II. SUFFICIENCY OF THE EVIDENCE
In issues six (part b), eight, nine (parts a and b), and fourteen, Ojeda argues the evidence is insufficient to prove his convictions for assault involving family violence (count 5) and aggravated sexual assault (count 3). Also, he argues the evidence is insufficient to support his conviction for aggravated assault with a deadly weapon (count 4) and the deadly weapon finding in his assault involving family violence conviction (count 5). In issues eight, nine (part c), eleven, and fourteen, Ojeda argues the trial court erred when it denied his motions for an instructed verdict with regard to the offenses of aggravated sexual assault (count 3), aggravated assault with a deadly weapon (count 4), aggravated kidnapping (count 1), and assault involving family violence (count 5). An appellate court reviews a challenge to the denial of a motion for an instructed verdict as a challenge to the sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Accordingly, we will review all of the foregoing issues to determine whether there was sufficient evidence to support Ojeda's convictions.A. Standard of Review
Under the proper sufficiency standard of review, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n. 19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.B. Assault Involving Family Violence (Count 5)
In issues six (part b) and fourteen, Ojeda argues the evidence is insufficient to support his conviction for assault involving family violence (count 5) because (1) the indictment alleged he was previously convicted of assault involving family violence in cause no. 14496, but the evidence of his prior conviction does not include the cause number; and (2) there was no evidence that he choked Gullion.1. Applicable Law
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2010). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). The offense of assault is a third degree felony if it is committed against a person with whom he had a dating relationship and was a member of his family or household, if it is shown that (A) prior to the commission of the assault, the defendant was previously convicted of assault involving family violence, or (B) the offense was committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck. See Tex. Penal Code Ann. § 22.01(b)(2); Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West 2008).2. Application of the Law to the Facts
First, Ojeda claims the evidence is insufficient because it does not include the cause number alleged in the indictment for his prior conviction for assault involving family violence. The State responds that the cause number is handwritten on the judgment in State's Exhibit No. 35. The indictment alleged Ojeda was previously convicted of assault involving family violence "on or about May 8, 2000, in the County Court of Leon County, Texas, in cause number 14496." The record shows the first page of State's Exhibit No. 35 is a certified copy of a judgment from the County Court of Leon County, Texas, against Ojeda for assault involving family violence. The judgment is file stamped "May 8, 2000." Further, although nothing is written at the top of the judgment next to "No.," the number "14496" is handwritten next to the file stamp. The second page of State's Exhibit No. 35 is the probable cause statement and complaint. Although the case number is listed as "00-0206," like the judgment, the number "14496" is handwritten next to the file stamp. We conclude the evidence is sufficient because it includes the cause number alleged in the indictment for his prior conviction for assault involving family violence. Second, Ojeda claims that there is no evidence that he choked Gullion to support his conviction. He claims that, during the conference on the trial court's jury charge, the State elected to limit the time for the charge of assault involving family violence (count 5) from the evening of February 13, 2009, to the early hours of February 14, 2009. And, although there is evidence that he choked Gullion, Ojeda claims there is no evidence that he choked Gullion during the narrow time period elected by the State. Also, he argues that for the assault portion of the charge, the State alleged that he choked and hit Gullion in the conjunctive, so they had to prove both. The State responds that there was evidence that Ojeda choked and hit Gullion during the requisite time frame and a conviction may be lawfully had through proof of only one of the alternate means alleged for committing the offense. The indictment alleged that "on or about February 14, 2009," Ojeda caused bodily harm to Gullion by "choking and hitting" her. During the conference on the jury charge and outside the presence of the jury, Ojeda renewed his motion to require the State to elect on which charges it was seeking a conviction. Although the State had previously argued that the election requirement did not apply to this case, it agreed to elect that the charge for assault involving family violence (count 5) occurred on the evening of February 13th through the early hours of February 14th, i.e., when Ojeda assaulted Gullion at Jeremy Ojeda's residence. The trial court denied the motion. Further, the State's agreement was not reflected in the jury charge for the offense of assault involving family violence, which states:The State is not bound by the specific date which the offense, if any, is alleged in the indictment to have been committed, but that a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment, which is within the period of limitations. The limitations period applicable to the offense here charged is ten years from the commission of the offense.Ojeda did not object to the inclusion of this language in the jury charge for the offense of assault involving family violence (count 5). Ojeda claims that there is no evidence that he choked Gullion between the evening of February 13th through the early hours of February 14th. However, the jury was not instructed to limit its consideration of the evidence to that specific time span and the record shows that there was evidence that Ojeda choked Gullion on or about February 14, 2009. We conclude that there is sufficient evidence to prove that Ojeda choked Gullion in support of his conviction for assault involving family violence (count 5). Accordingly, we conclude the evidence is sufficient to prove Ojeda's conviction for assault involving family violence (count 5). Issues six (part b) and fourteen are decided against Ojeda.
C. Aggravated Sexual Assault (Count 3)
In issue eight, Ojeda argues the evidence is insufficient to support his conviction for aggravated sexual assault (count 3) because Gullion testified that although she preferred not to have sex with him, she did not say, "No." The State responds that Gullion testified Ojeda choked her and threatened to kill her shortly before the sexual assault. Also, Gullion stated that she was afraid Ojeda would kill her and she would not survive, and she did not resist because she had no choice.1. Applicable Law
A defendant commits aggravated sexual assault if he causes the penetration of the sexual organ of another person by any means without that other person's consent and causes serious bodily injury to or places the other person in fear that serious bodily injury will be imminently inflicted. See Tex. Penal Code Ann. § 22.021(a) (West Supp. 2010). An aggravated sexual assault is without the consent of the other person if the defendant compels the other person to submit or participate by the use of physical force or violence, or compels the other person to submit or participate by threatening to use force or violence and the other person believes that he has the present ability to execute the threat. Tex. Penal Code Ann. §§ 22.021(c), 22.011(b)(1), (2) (West Supp. 2010).2. Application of the Law to the Facts
The record shows that Gullion testified that, after being severely beaten and forced to walk from her home to the burned trailer where they had previously lived together, Ojeda told her that he wanted to have sex with her. Gullion stated that she did not want to have sex with Ojeda, but did not tell him "No" because, if she did, she "knew what would happen," there would "be hell to pay." She stated that she complied with Ojeda's demand for sex "to get it over with." We conclude the evidence is sufficient to support Ojeda's conviction for aggravated sexual assault (count 3). Issue eight is decided against Ojeda.D. Deadly Weapon Findings
In issue nine (parts a, b, and c), Ojeda argues the evidence is insufficient to support his conviction for aggravated assault with a deadly weapon (count 4) and the deadly weapon finding in his assault involving family violence conviction (count 5) because the State did not prove that his fist was a deadly weapon. He claims that there is nothing linking Gullion's injuries to the definition of a deadly weapon or serious bodily injury, i.e., Ojeda's fist. He claims that Amaha Hailey, M.D., testified that Gullion did not suffer any broken bones or permanent disfigurement. The State responds that the evidence was sufficient to prove that Ojeda's fist was used or intended to be used as a deadly weapon. Further, the State argues that Dr. Hailey testified that Gullion suffered broken bones and permanent disfigurement.1. Applicable Law
A deadly weapon includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17) (West Supp. 2010). Serious bodily injury means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46). A hand or fist is not a deadly weapon per se, but may become a deadly weapon if used in a manner capable of causing death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983). When determining whether a hand or fist is a deadly weapon, the jury may consider all of the evidence presented, including "the words of the accused, the intended use of the weapon, the size and shape of the weapon, the testimony of the victim that she feared for her life, the severity of wounds inflicted, and testimony as to the weapon's potential for deadliness." Bui v. State, 964 S.W.2d 335, 343 (Tex. App.-Texarkana 1998, pet. ref'd); see also Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978); Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.-Houston [1st Dist.] 1992, no pet.).2. Application of the Law to the Facts
The portion of the indictment alleging assault with a deadly weapon (count 4) alleged that Ojeda intentionally, knowingly, or recklessly caused serious bodily injury to Gullion by repeatedly striking her with a closed fist and that his fist was a deadly weapon. Although the portion of the indictment alleging assault involving family violence does not allege Ojeda used a deadly weapon, the indictment contains a general deadly weapon allegation that Ojeda's fist was used as a deadly weapon during the offense. Also, the trial court's jury charge included a special issue on the use of a deadly weapon that instructed the jury that if they found Ojeda "guilty of any offense alleged in the indictment, [they] must determine beyond a reasonable doubt whether or not he used a deadly weapon, to-wit, a closed fist, during the commission of the offense." Gullion testified that Ojeda repeatedly hit her with his fists. Also, she stated that immediately before Ojeda hit her and knocked out some of her teeth, he grabbed her by the throat, threw her against the shower wall, and told her that "he was gonna kill [her]." As a result of Ojeda hitting her, Gullion had several fractures to her face, a broken finger, and lost some teeth. Further, she stated that the hospital thought she might need plastic surgery because of the severity of the fractures to her cheek bones. Dr. Hailey, the emergency room physician testified that, after ordering various x-rays and a CT scan of Gullion's head, face, and cervical spine, he observed that Gullion had multiple fractures. He stated that Gullion had a fracture to her zygomatic bone (the temple), an infra-orbital fracture (the floor of the orbit above the top of the mouth), nasal bone fractures, and a finger fracture. Dr. Hailey stated that he believed Gullion's injuries were serious bodily injuries and that her injuries put her at risk of having permanent disfigurement. Further, the emergency room medical report, which was admitted as State's Exhibit No. 1, states that the CT scan of Gullion's head and facial bones showed that she had "left anterior and lateral maxillary wall fractures," a "left zygoma fracture," a "tripod fracture on the left including orbital floor fracture," and nasal fractures. The x-ray of Gullion's right hand showed a "comminuted fracture of the proximal diametaphyseal area of the little finger." The hospital transfer sheet completed by Presbyterian Hospital in Kaufman, Texas, in order to transfer Gullion to Parkland Memorial Hospital in Dallas, Texas, states that the reason for the transfer is "Risks: worsening of current condition, accident, Death." (death is capitalized in original). We conclude there is sufficient evidence to support the jury's findings that Ojeda used his fist as a deadly weapon. Also, there is sufficient evidence to support the jury's findings that Gullion suffered serious bodily injury. Issue nine (parts a, b, and c) are decided against Ojeda.E. Aggravated Kidnapping (Count 1)
In issue eleven, Ojeda argues that the evidence is insufficient to support his conviction for aggravated kidnapping (count 1) because it does not prove that Gullion was restrained and her movements were restricted without her consent. He claims that Gullion testified "she did not want to go to the trailer, but she never testified that by going, it was against her will," and she "had numerous opportunities to escape, but never did." The State responds that Gullion stated that she went with Ojeda because she had no choice and she had no opportunity to escape. Also, the State argues the evidence shows that Ojeda intended to secrete Gullion in the parsonage and the trailer to avoid the church congregants.1. Applicable Law
A person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to inflict bodily injury or to violate or abuse her sexually, or to terrorize her. Tex. Penal Code Ann. § 20.04(a)(4), (5) (West 2003). An offender "abducts" a person by restraining the person with intent to prevent the person's liberation by (A) secreting or holding the person in a place where the person is not likely to be found, or (B) using or threatening to use deadly force. See id. § 20.01(2) (West Supp. 2010). An offender "restrains" a person if the offender restricts the person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Id. § 20.01(1). Restraint is without consent if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A).2. Application of the Law to the Facts
During the trial, after Gullion testified, but before she was cross examined, Ojeda moved for an instructed verdict. He argued that with regard to the offense of aggravated kidnapping (count 1), the evidence was insufficient to prove "the issue of consent." The record shows that when Gullion grabbed her purse and tried to leave the parsonage, Ojeda dragged her back inside the parsonage by her hair. Once inside the parsonage, Ojeda began punching and kicking Gullion. Although Gullion stated that she agreed to leave the parsonage with Ojeda in the hope that someone would see her and help, she also stated that she had to go with him anyway. When Ojeda wanted to leave the trailer and return to the parsonage, Gullion stated that she had no choice but to go with him or he would hit her again. Gullion testified that Ojeda repeatedly hit her and sexually assaulted her at both the parsonage and the trailer. Further, Gullion stated that Ojeda had possession of the cellular telephone and she was unable to find the parsonage telephone. Restraint is "without consent" if it is accomplished by force. Tex. Penal Code Ann. § 20.01(1)(A). Accordingly, we conclude the evidence was sufficient to prove that Ojeda restrained Gullion without her consent. Issue eleven is decided against Ojeda.III. TRIAL COUNSEL'S MOTION TO WITHDRAW
In issue one, Ojeda argues the trial court erred when it denied his appointed trial counsel's motion to withdraw. Ojeda argues that there was more than a mere personality conflict between his attorney and he, and that "[it] was not shown" that his trial counsel's motion to withdraw would obstruct the orderly procedure in the courts or interfere with the administration of justice because the motion to withdraw was filed approximately one month before his trial date. The State responds that Ojeda's trial counsel filed her motion to withdraw two weeks before the jury panel was scheduled to appear, Ojeda failed to demonstrate any conflict of interested or actual justification for the motion to withdraw, and the trial court appointed an additional attorney to sit as "second chair" or back-up counsel in his case.A. Standard of Review
An appellate court reviews a trial court's ruling on a motion to substitute counsel under an abuse of discretion standard. Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.-Dallas 2004, pet. ref'd).B. Applicable Law
A defendant has no right to appointed counsel of his choice. Sampson v. State, 854 S.W.2d 659, 662 (Tex. App.-Dallas 1992, no pet.). The defendant must accept the attorney appointed by the trial court unless he effectively waives the right to counsel in order to represent himself or shows adequate cause for appointment of a different attorney. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977). Disagreements concerning trial strategy are typically not valid grounds to require a change of counsel. See King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). The defendant carries the burden of proving that he his entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982). The defendant's request for a change of counsel cannot be made so as to obstruct the orderly procedure in the courts. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). When a defendant makes a last-minute request to change counsel and does not waive counsel and assert the right to self-representation, the trial court may compel him to proceed to trial with the attorney he has, whether he wants to or not. Id. at 429.C. Application of the Law to the Facts
Ojeda's appointed trial counsel filed a motion to withdraw as counsel on the basis that she was unable to effectively communicate with Ojeda and stated that Ojeda should be represented by the counsel of his choice. Attached to trial counsel's motion to withdraw was a letter from Ojeda stating that he "was not pleased in [her] performance as [his] attorney," he did not feel that she was defending his rights, her representation was no longer wanted, and he was terminating her services as his attorney. During the hearing on the motion to withdraw, Ojeda stated that he was not pleased with his appointed trial counsel because she had not located three witnesses, had communicated a plea offer from the State, which he did not like, and during one of their conferences, she had mistakenly stated that there was only one enhancement paragraph and that Gullion had broken her "hand." However, it was also determined that Ojeda had only provided his trial counsel with the first names of the witnesses. He claimed he did not know their last names, telephone numbers, or addresses. Further, Ojeda admitted that these witnesses were not present during the alleged offenses. The State confirmed that the plea offer Ojeda complained about was, in fact, the State's offer. Also, the State added that it's original plea offer had been for a greater period of incarceration, but was subsequently lowered as a result of Ojeda's trial counsel's representation. Ojeda's trial counsel admitted that, during a conference with Ojeda, she mistated the number of enhancements and that Gullion had broken her hand. However, she stated that Ojeda corrected her. The trial court denied the motion to withdraw, stating that he would not allow Ojeda to "dodge his trial date . . . because of these rather vague and ambiguous accusations about improper representation." We conclude that the trial court did not err when it denied Ojeda's trial counsel's motion to withdraw because Ojeda did not carry his burden to prove that he was entitled to a change of counsel. Issue one is decided against Ojeda.IV. MOTION FOR MISTRIAL
In issue two, Ojeda argues the trial court erred when it denied his motion for mistrial. He claims the jury array was tainted because the jurors for a different case had been selected from that same jury array. He contends this violated his constitutional rights to due process and an impartial jury. Also, he argues this violated articles 1.12 and 35.11 of the Texas Code of Criminal Procedure. The State responds that Ojeda's objection to the jury array was untimely because it must be made before voir dire.A. Preservation of Issue for Appeal
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R. App. P. 33.1. Further, the trial court shall hear and determine a challenge to the jury array before interrogating those summoned as to their qualifications. Tex. Code Crim. Proc. Ann. art. 35.06 (West 2006). A challenge to a jury array must be made before voir dire, must be made in writing, and must be accompanied by an affidavit. See Tex. Code Crim. Proc. Ann. art. 35.07; Clemons v. State, 893 S.W.2d 212, 215 (Tex. App.-El Paso 1995, no pet.). The failure to raise a challenge to the jury array before the panel is interrogated as to its qualifications is untimely and constitutes a waiver of the opportunity to challenge the array. See Jackson v. State, 745 S.W.2d 4, 18 (Tex. Crim. App. 1988); Esquivel v. State, 595 S.W.2d 516, 523 (Tex. Crim. App. 1980).B. Application of the Law to the Facts
In this case, voir dire occurred on October 19, 2009. Before trial, on October 26, 2009, Ojeda orally challenged the jury and moved for a mistrial. The trial court asked Ojeda for the basis of his challenge and motion for mistrial, and Ojeda's trial counsel argued:We believe that the panel has been tainted to a certain degree in that we were the second case to pick, and Mr. Ojeda was not happy with the array that we ended up with; and we would like to object to that panel and move for a mistrial at this time.The trial court overruled the objection and denied the motion for a mistrial. Although on appeal he argues the allegedly tainted jury array violated his constitutional rights to due process and an impartial jury, and articles 1.12 and 35.11 of the Texas Code of Criminal Procedure, he did not specify this at trial. Rather, he generally objected on the basis that he was not happy with the jury array. See Tex. R. App. P. 33.1. Also, Ojeda did not make his oral objection to the jury array and move for a mistrial until after the jury had been selected and before trial. See Tex. Code Crim. Proc. Ann. arts. 35.06, 35.07. His failure to challenge the jury array before the panel was interrogated as to its qualifications was untimely and constitutes a waiver of that opportunity. See Jackson, 745 S.W.2d at 18; Esquivel, 595 S.W.2d at 523. We conclude that Ojeda did not preserve this issue for appellate review. Ojeda's second issue is decided against him.
V. MOTION TO SUPPRESS EVIDENCE
In issue seven, Ojeda argues the trial court erred when it denied his motion to suppress his oral statement. He claims that during the police interview, he invoked his right to an attorney and to terminate the interview, but the police ignored his requests. The State responds that Ojeda's reference to an attorney was a vague comment and he never specifically requested an attorney. Also, the State argues that the video recording of Ojeda's police interview was not shown to the jury. The only testimony the jury heard relating to his police interview was that Ojeda was provided the Miranda warnings, he agreed to speak with the police, he admitting to hitting Gullion, he admitted to having sex with Gullion, but claimed it had been consensual, he stated that he and Gullion went to the trailer, but left because it was cold, and he admitted that they had used drugs before the weekend of the offense. Further, the State claims that any of Ojeda's statements admitted at trial were made to police before Ojeda's alleged request to terminate the police interview.A. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard requires an appellate court to give almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). A trial court is the sole trier of fact, and the judge of witness credibility and the weight to be given to their testimony. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).B. Applicable Law
When a defendant asks for a lawyer, the interrogation must cease until counsel has been provided or the defendant initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010), petition for cert. filed, (U.S. Sept. 14, 2010) (No. 10-9078). To trigger law enforcement's duty to terminate the interrogation, a defendant's request for counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks. Davis v. United States, 512 U.S. 452, 461-62 (1994); Davis, 313 S.W.3d at 339. Whether a statement referring to a lawyer constitutes a clear request for counsel depends on the statement itself and the totality of the circumstances surrounding the statement. Davis, 313 S.W.3d at 339. The test is objective: whether the defendant articulated his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. If the defendant' s invocation of the right to counsel is clear, his responses to further questioning may not be used to cast doubt retrospectively on the clarity of his initial request. Smith v. Illinois, 469 U.S. 91, 100 (1984); Davis, 313 S.W.3d at 339.C. Application of the Law to the Facts
Ojeda filed a motion to suppress his oral statement, claiming that it was obtained in violation of article 38.22 of the Texas Code of Criminal Procedure, and his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 9, 10, and 19 of the Texas Constitution. Some of Ojeda's statements were inaudible or mumbled on the video recording. Both Lt. Jolie Stewart and Ojeda testified during the hearing and provided the trial court with conflicting versions of the statements that allegedly invoked Ojeda's right to an attorney. During the hearing, Ojeda contended that his request for an attorney was ignored and tried to argue that his request to terminate the interview was disregarded by the police. The State argued that the pretrial hearing was only regarding his right to invoke counsel. As a result, the State requested that the issue be continued to another pretrial hearing so that the State could have the opportunity to prepare a response to Ojeda's arguments. Ojeda's trial counsel agreed to the State's request. Ojeda does not point us to any place in the record showing that a subsequent pretrial hearing was held regarding his alleged request to terminate the police interview or that the matter was raised during the trial. Before ruling on the motion, the trial court twice reviewed the video recording of Ojeda's police interview. The trial court denied Ojeda's motion to suppress and signed written findings of fact and conclusions of law. Specifically, the trial court found that before the interview, Ojeda was provided the Miranda warnings and knowingly, intelligently, and voluntarily waived those rights, Ojeda never made a clear and unequivocal statement to invoke his right to counsel, and Lt. Stewart would not have understood any references to an attorney by the defendant to be a request for an attorney. Giving almost total deference to the trial court's determination of the historical facts, we conclude the trial court did not err when it denied Ojeda's motion to suppress because, under the circumstances presented here, Ojeda did not make a clear request for counsel. Issue seven is decided against Ojeda.VI. MOTION TO ELECT CHARGE
In issue three, Ojeda argues the trial court erred when it denied his motion for the State to elect on which charge it was relying for conviction. He claims that we should construe his motion as a motion for a severance because the case involved five different offenses. The State responds that Ojeda did not request a severance. Also, the State argues that this issue is not preserved for appellate review because it agreed to elect between the offenses at the close of evidence. First, we review whether Ojeda's oral motion should be construed as a motion for a severance. A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Penal Code Ann. § 3.02 (West 2003). "Criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted on more than one person. See id. § 3.01. However, a defendant has a right to a severance of the offenses. Id. § 3.04(a). The defendant's consent to the consolidation or joinder may be inferred from his failure to timely apprise the trial court that he wants separate trials. See Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim. App. 1989). A motion to sever must be raised before trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex. Crim. App. 1999); Trevino v. State, 228 S.W.3d 729, 733 (Tex. App.-Corpus Christi 2006, pet. ref'd). The defendant's complaint is sufficient if it apprises the trial court that he does not desire to have the offenses joined in a common trial. See Ford v. State, 782 S.W.2d 911, 912 (Tex. App.-Houston [14th Dist.] 1989, no pet.). When a defendant timely requests a severance under section 3.04(a), his right to a severance is absolute and the severance is mandatory. See Coleman v. State, 788 S.W.2d 369, 371 (Tex. Crim. App. 1990); Trevino, 228 S.W.3d at 733; King v. State, 189 S.W.3d 347, 353 (Tex. App.-Fort Worth 2006, pet. ref'd). Before voir dire, the following exchange occurred regarding the consolidation of the offenses alleged against Ojeda:Ojeda's Counsel:
Additionally, you Honor, the way the indictment is set out, it's a five count indictment. And within each count there are subparagraphs. They're not charged conjunctively or disjunctively, and it's my understanding that once the State concludes their case in chief, that they will elect on which paragraph they are intending to seek the conviction with regard to those separate offenses.
State:
And I explained to [Ojeda's counsel] that in case there was any confusion, that the paragraphs were meant to be ors, alternative manner and means. And the counts were meant to be separate, distinct offenses. And then if there is an election requirement, we'll make it at the end of the testimony. And I think some of the issues we can probably hash out also between now and then as far as what's actually going to be charged to the jury.
The Court:
All right, very good. Anything you can't work out I'll be happy to rule on next Monday.
Ojeda's Counsel:
Yes, sir.
Before trial, Ojeda's trial counsel raised the issue of election of the charges again. The following exchange occurred:
Ojeda's Counsel:
Your Honor, one more thing. Additionally, I request the State to elect now which charges they are anticipating seeking the convictions on because the way the indictment is set out, I believe it allows multiple convictions. It allows the jury to return verdicts of convictions and not be unanimous in what they're doing.
. . . .
State:
I'll respond, your Honor. We've addressed this issue before that there's five counts in the indictment. Each one sets a different offense. Aggravated assault, there's an aggravated sexual assault by penetration of the female sexual organ, aggravated sexual assault by penetration of the anus of the alleged victim, assault [involving] family violence, additionally aggravated kidnapping. So there's five distinct charges.
The requirement of election comes when there's multiple events alleged. Let's say in a child sexual assault case, that a child might describe five events of penetration, the State has to elect which one they're going to rely upon for conviction. I don't believe that this will be the case in here. And I also think that requiring the State to elect at this time, before there has been a presentment of evidence, is premature. I don't think the State is required to elect should there be multiple events described in the testimony. It's not required until the close of evidence. I think that's what we previously discussed that that's what the State would do at the close of evidence such that the jury would only be charged with those theories that the State intended to pursue for conviction purposes. I think at this point it's premature to require election.
The Court:
That is the Court's recollection that when we were doing jury selection this same discussion took place, and I'm going to deny your motion to force the State to elect at this time.
Although Ojeda raised his motion before trial, he did not apprise the trial court that it was a motion to sever properly joined offenses for separate trials. Instead, he requested that the State elect on which charges it was seeking convictions because he believed the indictment allowed multiple convictions and allowed the jury to return guilty verdicts that were not unanimous. We conclude Ojeda's motion does not clearly amount to a motion to sever pursuant to section 3.04 of the Texas Penal Code.
Second, we review whether the trial court erred when it denied Ojeda's motion for the State to elect on which charge it was relying. Ojeda provides no argument, authorities, or citations to the record to support this claim. He argues only that his motion should be construed as a motion to sever and that the trial court erred because he was entitled to a severance. Accordingly, we conclude this issue was not preserved for appellate review because the argument on appeal does not comport with Ojeda's objection at trial.
Issue three is decided against Ojeda.
VII. ADMISSIBILITY OF EVIDENCE
In issues four, five, and six (part a), Ojeda argues the trial court erred when it overruled his objections to the admissibility of testimony and evidence.A. Preservation of Issues for Appeal
In issue four, Ojeda argues the trial court erred when it allowed the testimony of Maggie Swanson, R.N., and in issue six (part a) he argues the trial court erred when it overruled his objection to State's Exhibit No. 35. The State responds that these issues were not preserved for appellate review.1. Applicable Law
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. To preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R. App. P. 33.1. To preserve an error for appeal, a party's argument on appeal must comport with his objection in the trial court. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003).2. Application of the Law to the Facts
First, Ojeda argues the trial court erred when it allowed the testimony of Swanson because she was not qualified to testify regarding Gullion's broken finger. The State responds that Ojeda's issue is not preserved for appellate review because he failed to timely object to Swanson's testimony and did not object each time the evidence was offered. After showing Swanson a photograph of Gullion's finger, the State asked Swanson to describe what "about the finger area was indicative . . . of the trauma described." The State then withdrew the question, stating it desired to rephrase the question. Then, before the State rephrased its question, Ojeda objected to Swanson's testimony regarding Gullion's broken finger as follows:Your Honor, if I may object to this witness testifying with regard to the injury concerning the broken finger in that she's previously testified she's a sexual assault nurse examiner and a registered nurse. She was, I don't believe, involved with the treatment of the broken bones.The State responded to Ojeda's objection as follows:
She's part of the emergency medical team, which has already been identified as Dr. Hailey, as a person that assisted and provided medical treatment. Just because she's not actually the person providing the treatment does not make her part and parcel of the person providing the medical diagnosis, which would also be the person selecting and making the appropriate medical treatment. As such, she would be able to testify about her observations as part and parcel of her observations, which has already been documented and admitted in State's Exhibits Number 3 through 5.The trial court overruled the objection. On this record, we construe Ojeda's objection to be that Swanson did not have personal knowledge regarding Gullion's broken finger because she was not involved in the treatment of Gullion's broken bones. After hearing the State's response that Swanson was a part of the medical team that provided treatment to Gullion, Ojeda made no attempt to clarify and articulate an objection that he was challenging Swanson's qualifications as an expert. Accordingly, we conclude that Ojeda's issue was not preserved for appellate review because his argument on appeal does not comport with his objection at trial. Second, Ojeda argues the trial court erred when it overruled his objection to State's Exhibit No. 35, an exhibit addressed in Ojeda's issues on the sufficiency of the evidence to support his conviction for assault involving family violence. State's Exhibit No. 35 is a copy of the Leon County Clerk's record and contains a judgment of conviction for assault involving family violence against "Ojeda, C. Andress." and the probable cause statement and complaint alleging assault involving family violence by Ojeda against Diana Cantu. Ojeda argues that there is no evidence linking him to State's Exhibit No. 35. He claims that the cause number and Cantu's testimony were insufficient to prove that he was the same Ojeda convicted of assault involving family violence in State's Exhibit No. 35. The State responds that Ojeda's issue on appeal does not comport with his objection at trial. When the State offered State's Exhibit No. 35 into evidence, Ojeda made the following objection:
[W]e would object to [the] admission of State's Exhibit 35 in that there's no cause number. We believe that the judgment appears to be invalid on its face. Again, we don't believe that the proper foundation has been laid for the admission of that document or to prove up a final conviction.The State responded that the document was self-authenticating and the cause number was handwritten on the judgment and complaint next to the file stamps. After further argument from Ojeda and before ruling, the trial court requested clarification of Ojeda's objection as follows: "So your objection . . . is that the cause number is not contained in the style of the judgment." Ojeda responded "That's correct. It doesn't appear to be valid." We conclude that Ojeda's issue was not preserved for appellate review because his argument on appeal does not comport with his objection at trial. Issues four and six (part a) are decided against Ojeda.
B. Admissibility of Evidence
In issue five, Ojeda argues the trial court erred when it overruled his objection to State's Exhibit No. 36, which is a copy of the Leon County Sheriff's Department records and contains a finger print card, magistrate's warning, property release sheet, waiver of rights and plea of guilty, and probable cause statement and complaint alleging assault involving family violence by Ojeda against Diana Cantu. He claims that State's Exhibit No. 36 is not relevant or material, and contains extraneous material, hearsay statements, and non-meritorious information. The State responds that the exhibit was properly admitted at trial and some of Ojeda's arguments on appeal do not comport with his objection at trial.1. Preservation of Argument for Appeal
Ojeda objected to State's Exhibit No. 36 as follows:And judge, with regard to again State's Exhibit [No.] 36, I don't believe that it is admissible at this point in order to prove up the prior. These are the Leon County Sheriff's Department records. Not relevant to whether or not there was a conviction involving assault family violence.The State responded that the exhibit was relevant to "show the arrest" and "the time frame." The trial court overruled the objection. Ojeda argues, in part, that State's Exhibit No. 36 contains extraneous material, hearsay statements, and non-meritorious information. To preserve an error for appeal, a party's argument on appeal must comport with his objection in the trial court. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Ojeda's only objection to State's Exhibit No. 36 was that it was not relevant. Accordingly, we conclude the only argument preserved for appellate review is as to relevance. Accordingly, we consider only Ojeda's argument that the trial court erred when it overruled his objection to State's Exhibit No. 36 because it was irrelevant.
2. Harmless Error
Even if the trial court erred when it overruled Ojeda's objection to State's Exhibit No. 36, an appellate court must review whether that error was harmful. Ojeda does not address the issue of harmful error, but does admit that within State's Exhibit No. 36 "[t]here is nothing contained that adds anything more than the testimony of Cantu and the judgment in [State's] [E]xhibit [No.] 35."a. Applicable Law
Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991).b. Application of the Law to the Facts
Ojeda concedes that the evidence contained in State's Exhibit No. 36 is cumulative of State's Exhibit No. 35 and Cantu's testimony. The documents in State's Exhibit No. 36 show that Ojeda was charged with assault involving family violence against Cantu, the assault occurred on April 30, 2000, he pleaded guilty to the offense charged, and he was released from jail on May 6, 2000. State's Exhibit No. 35 contains a judgment of conviction for assault involving family violence against "Ojeda, C. Andress," and the probable cause statement and complaint alleging assault involving family violence by Ojeda against Diana Cantu. Also, Diana Cantu testified that while she was "common law married" to Ojeda, he assaulted her and she was the Cantu referred to in State's Exhbit Nos. 35 and 36 who was assaulted on April 30, 2000. Accordingly, we conclude that even if the trial court erred when it admitted State's Exhibit No. 36, the admission of that exhibit was harmless. Issue five is decided against Ojeda.VIII. JURY CHARGE ERROR
In issue ten, Ojeda argues the trial court erred when it failed to sua sponte include all of the elements of the statute in the jury charge that pertained to the offense of aggravated sexual assault (count 2). He claims that he suffered egregious harm. The State responds that Ojeda did not suffer egregious harm because the record does not show that the jury was authorized by the charge to convict Ojeda without finding one of the indicted manner and means of commission. Also, the State argues that when considering the jury charge as a whole, the application paragraph properly charged the jury.A. Egregious Harm
Article 36.19 of the Texas Code of Criminal Procedure establishes the standard for reversal on appeal when the requirements of article 36.14, which relates to the charge of the court, have been disregarded: "the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of [the] defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). Under Almanza, jury charge error requires reversal of the judgment when the defendant has properly objected to the charge and the appellate court finds "some harm" to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When the defendant fails to object or states that he has no objection to the jury charge, an appellate court will not reverse for jury charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Errors which result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive. E.g., Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011).B. Application of the Law to the Facts
In order to evaluate Ojeda's complaint that the trial court erred when it failed to sua sponte include all of the elements of the statute in the jury charge that pertained to the offense of aggravated sexual assault (count 2), we must review the indictment and the trial court's jury charge for count 2 as to the law and the application portions of that charge. A comparison of these will demonstrate whether Ojeda's complaint has merit. Count 2 of the indictment alleged that Ojeda:intentionally or knowingly cause[d] the penetration of the anus of [] Gullion [by] [Ojeda's] sexual organ, without the consent of [] Gullion, and [Ojeda] did then and there by acts or words threaten to cause, or place, [Gullion] in fear that serious bodily injury would be imminently inflicted on [] Gullion, and said acts or words occurred in the presence of [Gullion].
Intentionally or knowingly cause[d] the penetration of the anus of [] Gullion by [Ojeda's] sexual organ, without the consent of [] Gullion, and in the course of the same criminal episode [Ojeda] caused serious bodily injury to or attempted to cause the death of [Gullion] by repeatedly striking [Gullion] with a closed fist.This indictment alleged that the offense of sexual assault was aggravated by three different means. First, it alleged that Ojeda, by acts or words, placed Gullion in fear that serious bodily injury would be imminently inflicted on her. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii). Second, it alleged that Ojeda, by acts or words, occurring in the presence of Gullion, threatened to cause seriously bodily injury to Gullion. See id. § 22.021(a)(2)(A)(iii). Third, it alleged that Ojeda caused serious bodily injury or attempted to cause the death of Gullion in the course of the same criminal episode. Tex. Penal Code Ann. § 22.021(a)(2)(A)(i) (West Supp. 2010). The trial court's jury charge for count 2 sets out the law as follows:
Our law provides that a person commits the offense of aggravated sexual assault if he knowingly or intentionally causes the penetration of the anus of another person by any means, without that person's consent, and if the person also by acts or words occurring in the presence of the victim threatens to cause the serious bodily injury of any person OR if the person causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode.This portion of the trial court's jury charge does not provide that the offense of sexual assault may be aggravated if the person, by acts or words, places the victim in fear that serious bodily injury will be imminently inflicted on any person. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii). The application portion of the trial court's jury charge states as follows:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that . . . Ojeda, did then and there intentionally or knowingly cause the penetration of the anus of [] Gullion by [Ojeda's] sexual organ, without the consent of [] Gullion, and [Ojeda] did then and there by acts or words threaten to cause, or place, [Gullion] in fear that serious bodily injury would be imminently inflicted on [] Gullion, and said acts or words occurred in the presence of [Gullion], OR if you believe from the evidence . . . Ojeda, did then and there intentionally or knowingly cause the penetration of the anus of [] Gullion by [Ojeda's] sexual organ, without the consent of [] Gullion, and in the course of the same criminal episode [Ojeda] caused serious bodily injury to or attempted to cause the death of [Gullion] by repeatedly striking [Gullion] with a closed fist, then you will find [Ojeda] guilty as charged in Count 2 of the indictment . . .While the portion of the trial court's jury charge that sets out the law did not provide all of the elements of the offense of aggravated sexual assault alleged in the indictment, the application paragraph did. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii). Further, Ojeda's defensive theory was that there was no anal penetration. We conclude that, even if the trial court erred when it failed to sua sponte include all of the elements of the statute in the portion of the jury charge setting out the law pertaining to the offense of aggravated sexual assault (count 2), this did not result in egregious harm. Issue ten is decided against Ojeda.
IX. DOUBLE JEOPARDY
In issues twelve and thirteen, Ojeda argues his right to be free from double jeopardy was violated when the aggravated assault with a deadly weapon (count 4) charge was submitted to the jury because it is a lesser included offense of the aggravated kidnapping (count 1) and aggravated sexual assault (counts 2 and 3) charges. The State responds that each offense requires proof of an element that the other does not. Also, the State argues that the alleged criminal episode lasted for three days and it is entitled to charge Ojeda with each of the offenses that occurred during the course of that criminal episode.A. Preservation of Error
A double-jeopardy violation may be raised for the first time on appeal if: (1) the undisputed facts show the double-jeopardy violation is clearly apparent on the face of the record; and (2) when enforcement of the usual rules of procedural default serves no legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006). However, when offenses, one of which could give rise to a multiple-punishment, double-jeopardy violation, are listed disjunctively in the jury charge, the burden is on the defendant to preserve a double-jeopardy objection at or before the time the charge is submitted to the jury. Id. When separate theories for an offense are issued in the charge to the jury disjunctively, a double-jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double-jeopardy violation and there is sufficient evidence to support that valid theory. Langs, 183 S.W.3d at 687; Gonzalez v. State, 8 S.W.3d 640, 641-42 (Tex. Crim. App. 2000). The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy Clause is not sufficient to show a constitutional violation clearly apparent on the face of the record. Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643.B. Application of the Law to the Facts
As a preliminary matter, we consider whether Ojeda raised a double-jeopardy violation at trial. He claims that his motion for the State to elect preserved his double-jeopardy claim. The record shows that, before trial, Ojeda's trial counsel made a motion for the State to elect on which charges it was relying for conviction. The following exchange occurred:Ojeda's Counsel:
Your Honor, one more thing. Additionally, I request the State to elect now which charges they are anticipating seeking the convictions on because the way the indictment is set out, I believe it allows multiple convictions. It allows the jury to return verdicts of convictions and not be unanimous in what they're doing.
. . . .
The Court:
That is the Court's recollection that when we were doing jury selection this same discussion took place, and I'm going to deny your motion to force the State to elect at this time.We conclude that this motion did not raise a double-jeopardy claim. Accordingly, we review whether the undisputed facts show the double-jeopardy violations are clearly apparent on the face of the record. First, we review issue twelve where Ojeda claims that his right to be free from double jeopardy was violated when the aggravated assault with a deadly weapon offense (count 4) was submitted to the jury because it is a lesser included offense of the aggravated kidnapping offense (count 1). Ojeda argues only that paragraph 2 of the aggravated kidnapping offense (count 1) subsumes the allegations of the aggravated assault with a deadly weapon offense (count 4). Count 1 of the indictment alleged that Ojeda committed the offense of aggravated kidnapping under two different theories and in two separate paragraphs. The jury was instructed on both paragraphs of the aggravated kidnapping offense (count 1) alleged in the indictment in the disjunctive and returned a general verdict of guilty. Also, there was sufficient evidence to support the verdict under the theory presented in paragraph 1 of the aggravated kidnapping offense (count 1). The fact that the jury could have relied on paragraph 2 of the aggravated kidnapping charge (count 1) is not sufficient to show that a double-jeopardy violation is clearly apparent from the face of the record. See Langs, 183 S.W.3d at 687. Accordingly, we conclude that Ojeda has failed to preserve this issue. Second, we review issue thirteen where Ojeda claims that his right to be free from double jeopardy was violated when the aggravated assault with a deadly weapon offense (count 4) was submitted to the jury because it is a lesser included offense of the aggravated sexual assault offenses (counts 2 and 3). Ojeda argues only that paragraph 2 of the aggravated sexual assault offenses (counts 2 and 3) subsumes the allegations of the aggravated assault with a deadly weapon offense (count 4). Counts 2 and 3 of the indictment each alleged that Ojeda committed the offense of aggravated sexual assault under two different theories and in two separate paragrpahs. The jury was instructed on both paragraphs of the aggravated sexual assault offenses (counts 2 and 3) alleged in the indictment in the disjunctive and returned general verdicts of guilty. Also, there was sufficient evidence to support the verdicts under the theories presented in paragraph 1 of the aggravated sexual assault offenses (counts 2 and 3). The fact that the jury could have relied on paragraph 2 of the aggravated sexual assault charges (counts 2 and 3) is not sufficient to show that a double-jeopardy violation is clearly apparent from the face of the record. See Langs, 183 S.W.3d at 687. Accordingly, we conclude that Ojeda has failed to preserve this issue. Issues twelve and thirteen are decided against Ojeda.