Opinion
Nos. 05-02-01657-CR, 05-02-01658-CR
Opinion Filed September 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-48688-WR, F02-72356-UR. Affirmed.
OPINION
Jose Vasquez Reyes appeals his convictions for aggravated robbery and attempted aggravated sexual assault. The jury found appellant guilty of both offenses and assessed his punishment at sixty years' imprisonment for aggravated robbery and twenty years' imprisonment for attempted aggravated sexual assault. Additionally, the jury assessed a fine of $10,000 in each case. In the appeal of his attempted aggravated sexual assault conviction, appellant contends the evidence is legally and factually insufficient. In the appeal of his aggravated robbery conviction, appellant contends the jury charge contained error because it included a partial Geesa instruction. We affirm the trial court's judgments. FACTUAL BACKGROUND At about 7:15 p.m. on March 3, 2002, the complainant was washing her car, a two-door Honda Accord, when appellant held a pistol to her side and dragged her into her car. Appellant forced her to drive to the parking lot of a deserted shopping center. Appellant told the complainant to climb into the backseat of the car. When the complainant refused, he pointed the gun at her head, and she crawled into the backseat. Appellant followed her into the backseat. Appellant pulled out a knife and, while holding the gun in one hand and the knife in the other, asked her if she had any money. The complainant said she had "a little bit." Appellant told her to give it to him, and she gave him all the money she had. Appellant told her to take off her clothes, and she did so. The complainant said she was sick and needed to use the restroom, but appellant told her to shut up. The complainant then had a bout of diarrhea all over the seat. The complainant described what happened next: A.I guess he didn't know — or really — but he took his hand and he felt — he started feeling in between my legs.
Q. And what happened after he did that?
A. I guess he got some on his hands. So, he was mad and he kind of just jerked back in the seat and started undoing his pants and his zipper, and I was begging him. I knew what he wanted and I was begging him, "Please, I'm sick, please, no."
Q. And did he fully unbutton his pants or was he starting the process?
A. He was just starting the process.
Q. And at that point did you think that he wanted you to perform a certain sexual act on him at that point?
A. Yes, I did.
Q. And did he say anything to you about this at this point?
A. No.
Q. What did you say in response to him unbuttoning his pants?
A. I was begging him. I said, "Please, no, please." I said, "Please, I can't, please, I'm sick."
Q. What happened next?
A. That's all I kept saying.A car went past, and appellant ducked down. Appellant then took the complainant's gold necklace, bracelets, and rings, and he cut her throat, neck, and chest with the knife. After a struggle over the gun, during which appellant viciously beat the complainant, appellant ran from the car, leaving the complainant bleeding profusely. The complainant drove to a convenience store and asked someone to call an ambulance. ATTEMPTED AGGRAVATED SEXUAL ASSAULT In the attempted aggravated sexual assault appeal, appellant brings four complaints contending the evidence is legally and factually insufficient and there is a material variance because the State failed to prove appellant told the complainant to perform deviate sexual intercourse on him as alleged in the indictment. The indictment alleged appellant did, with specific intent to commit the offense of aggravated sexual assault, do an act, to wit: intentionally and knowingly attempt to cause penetration of the mouth of . . . the complainant, with the sexual organ of said defendant, without the consent of the complainant, by intentionally and knowingly telling the complainant to perform deviate sexual intercourse upon the defendant [while using and exhibiting a deadly weapon]; said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended. . . . "Deviate sexual intercourse" includes any contact of the mouth with the sexual organ of another person. Tex. Pen. Code Ann. § 21.01(1)(A) (Vernon 2003). Legal Insufficiency In determining the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). "This standard is meant to give `full play to the [jury's] responsibility fairly' to `draw reasonable inferences from basic facts to ultimate facts.'" Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000) (quoting Jackson, 443 U.S. at 319). Appellant argues the evidence is insufficient to show (1) that he told the complainant to perform any sexual act, and (2) that deviate sexual intercourse, oral sex, was the specific sexual act he told the complainant to perform upon him. Appellant argues the evidence is insufficient to support the allegation of his "telling" the complainant to perform oral sex upon him because he never verbally expressed that demand It was not necessary that the "telling" be in words. The verb "tell" includes the meanings "make known," "reveal," and "manifest," and these need not be done with words. See Webster's Third New International Dictionary 2351 (1981). Accordingly, we must determine from the facts of this case whether appellant's partial unzipping and undoing of his pants was sufficient to constitute "telling" the complainant to perform oral sex on him. The record in this case shows the complainant was an obese woman weighing about 280 pounds. She and appellant were in the back seat of a two-door Honda Accord. After taking off her clothes, the complainant had a discharge of diarrhea, getting feces on herself and the seat. Appellant put his hands between her legs, and he jumped back when he realized she had defecated on herself. At that point, appellant began to undo his pants. Appellant's forcing the complainant to strip naked and his undoing his pants indicated that he wanted to have some kind of sexual act with the complainant. Appellant argues the evidence is insufficient because it cannot be determined from the evidence whether his act of unzipping his pants was a demand for oral as opposed to vaginal sex. Assuming that appellant's unzipping his pants gave rise to inferences of a demand for either oral or vaginal sex, the jury has authority to select from conflicting inferences. See Young v. State, 10 S.W.3d 705, 710 (Tex.App.-Texarkana 1999, pet. ref'd); Lopez v. State, 884 S.W.2d 918, 921 (Tex.App.-Austin 1994, pet. ref'd). Furthermore, the fact that the complainant had soiled herself and the car seat, together with her large size and the small amount of room in the car, allowed the jurors to reasonably infer that appellant did not intend to have vaginal sexual intercourse with her. Instead, the jurors could find appellant intended to force the complainant to perform oral sex upon him, which the jurors could conclude was the most available sex act in this situation. Appellant argues his act of unzipping his pants was too vague an action to tell the complainant he wanted her to perform oral sex on him. We disagree. As discussed above, his acts of forcing the complaint to strip naked and his unzipping his pants showed he desired some kind of sexual activity. Under the circumstances, oral sex was the only form of sexual activity reasonably available. In this case, appellant's unzipping his pants manifested his demand that the complainant perform oral sex upon him. Appellant also argues that conviction in this situation could be achieved only by enlarging the manner and means of committing the offense from that alleged in the indictment. Appellant argues the jury convicted him based on his act of unzipping his pants, not the alleged act of telling the complainant to perform deviate sexual intercourse. As discussed above, "telling" does not require verbalization; it may be accomplished through acts as well as words. The complainant testified she understood from appellant's unzipping his pants that he wanted her "to perform a certain sexual act on him." Under the facts in this case, appellant's unzipping and undoing his pants manifested to the complainant his demand for her to perform oral sex upon him. We conclude a reasonable trier of fact, viewing the evidence in the light most favorable to the verdict, could find beyond a reasonable doubt all the elements of attempted aggravated sexual assault, including that appellant told the complainant to perform deviate sexual intercourse upon him. We hold the evidence is legally sufficient to support his conviction. We overrule appellant's first issue. Factual Sufficiency Appellant next contends the evidence is factually insufficient to support his conviction. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we will not reverse unless the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). Appellant argues the evidence of his guilt is too weak to support the finding of guilt beyond a reasonable doubt because, "It would be manifestly unjust to equate unzipping one's pants with the direct statement `perform oral sex on me,' because . . . the act of unzipping one's pants is ambiguous at best." We disagree. Appellant's unzipping his pants was not ambiguous under these circumstances; it manifested to the complainant appellant's command that she perform oral sex on him. We conclude the evidence of appellant's guilt is not too weak to support the finding of guilt beyond a reasonable doubt. We hold the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second complaint. Variance In his third and fourth issues, appellant contends the evidence at trial varied from the allegations in the indictment. A variance exists when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from that alleged in the indictment. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). A variance is material (1) when the indictment fails to sufficiently inform the defendant of the charge against him to allow him to prepare an adequate defense, and (2) when the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. at 248. Appellant argues a material variance exists in this case because "appellant had notice of oral sex and a verbal demand, not an unstated threat and a variety of sexual conduct." The indictment alleged appellant attempted to penetrate the complainant's mouth with his sexual organ by telling her to perform deviate sexual intercourse upon him. As discussed above, the facts of this offense showed that the complainant's performing oral sex on appellant was the only sex act possible in these circumstances, and appellant's telling the complainant to perform deviate sexual intercourse on him did not have to be expressed verbally and was communicated by appellant's unzipping his pants. We conclude there is no variance between the indictment and the proof. We overrule appellant's third and fourth issues. AGGRAVATED ROBBERY In his appeal of the aggravated robbery conviction, appellant brings one complaint contending the trial court erred by including a partial Geesa instruction on reasonable doubt in the jury charge. The charge instructed the jury, The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant. It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt. In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit the defendant and say by your verdict "not guilty". This instruction constitutes paragraphs [2], [3], and [6], respectively, of the six-paragraph jury instruction mandated by Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled in part by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). See O'Canas v. State, 140 S.W.3d 695, 699 (Tex.App.-Dallas 2003, pet. ref'd). Almost nine years later, the court of criminal appeals rejected paragraphs [4] and [5] of the Geesa instruction because they provided a "redundant," "useless," and "ambiguous" definition of reasonable doubt. Paulson v. State, 28 S.W.3d 570, 572 (Tex.Crim.App. 2000); see O'Canas, 140 S.W.3d at 699-700. "[T]he better practice is to give no definition of reasonable doubt at all to the jury." Paulson, 28 S.W.3d at 572. Appellant argues the trial court erred in submitting paragraphs [2], [3], and [6] of the Geesa instruction because they define reasonable doubt. In O'Canas, this Court held paragraph [3] (the second paragraph quoted above) of the Geesa instruction did not define reasonable doubt. O'Canas, 140 S.W.3d at 702; see also Carriere v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Paragraph [2] (the first paragraph quoted above) states the prosecution's burden is proof beyond a reasonable doubt, and paragraph [6] (the third paragraph quoted above) instructs the jurors to acquit if they do not find the prosecution proved appellant's guilt beyond a reasonable doubt. Neither of these paragraphs defines reasonable doubt. We hold the trial court did not err by including the quoted instruction in the jury charge. We overrule appellant's sole issue in the appeal of the aggravated robbery conviction. We affirm the trial court's judgments.