Williamson v. State

Full title: CARL LEWIS WILLIAMSON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 7, 2006

No. 05-04-00738-CR (Tex. App. Apr. 7, 2006)

Opinion

No. 05-04-00738-CR

Opinion Filed April 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00015-T. Reverse and Remand.

Before Justices WRIGHT, RICHTER, and FRANCIS.

OPINION

Opinion By Justice FRANCIS.

After entering not guilty pleas to two indictments alleging aggravated sexual assault, Carl Lewis Williamson was acquitted by a jury in one case and convicted of aggravated assault with a deadly weapon in the other. The jury assessed punishment at eighteen years in prison and a $5,000 fine. In two issues, Williamson contends the trial court erred in instructing the jury that aggravated assault was a lesser included offense and in admitting certain prejudicial statements into evidence. We conclude that, under the facts of this case, aggravated assault is not a lesser included offense of aggravated sexual assault, we reverse the trial court's judgment and remand for proceedings consistent with this opinion. Dallas police officers Robert Hay and Richard Martinez were driving on a dirt road in a dark, secluded area when they came upon a car backed into a wooded area. Having previously recovered stolen and abandoned vehicles in that area, the officers put their spotlight on the car. Hay saw a white female in the passenger seat of the car. She had blood on her forehead, was bleeding from other wounds, and had bruises around her eyes. As the officers approached the woman, she was so still that they "thought she was dead." Her clothing was open at the chest and her pants were down around her ankles. Williamson was lying in the front seat of the car, trying to hide. The woman identified herself to the officers as C.B. She told officer Hay that Williamson "raped" her and hit her with a club. She believed Williamson's penis had penetrated her vagina but was not sure. Hay found a three-foot wooden club fitting the description given by C.B. in between the driver's seat and driver's side door. C.B. said she thought she lost consciousness during the incident. Hay did not notice an odor of alcohol on either C.B. or Williamson and did not believe C.B. was under the influence of a drug. He later learned C.B. had a history of mental problems. Hay told the jury the club used to hit C.B. was capable of causing serious bodily injury and was a deadly weapon. Martinez drove the squad car to the police station while Hay sat in the back with Williamson. Although still handcuffed, Williamson spit on Hay, tried to bite and kick him, and was ultimately pepper-sprayed. He told the officers, "I'm MHMR, motherfucker, and there is nothing you can do to me." He also said, "I will beat this case. She is homeless. She is not even going to show up and I will be out in 10 days." Williamson said this over and over and added that he had "beat this stuff in the past." Dr. Mary Jane Pearson of the University of Texas Southwestern Medical Center examined C.B. and found she had been beaten about the head. C.B. was lucid and able to answer the doctor's questions. C.B. told Pearson there had been only one assailant and that he tried to penetrate her anus but she fought him off and was beaten as a result. C.B. did not recall if her assailant tried to penetrate her vagina. C.B. was in pain and had clearly been traumatized. Her injuries were recent and consistent with having been struck with a club. Although no injury to the external vagina was noted, there were pubic hairs and a white substance in her vagina. She had hemorrhoids with bruising around them indicating trauma, like forcible anal sex. No sperm was found in her vagina, although the doctor testified sperm was found in only about twenty percent of assault cases. C.B. told Pearson she had bipolar disorder, or manic depression. Pearson described bipolar disorder as being more of a behavioral problem that did not involve losing touch with reality. Although she normally took medication, C.B. had been off it for less than a week. Medication for bipolar disorder was taken to prevent extreme mood swings. C.B. testified she had been diagnosed with bipolar disorder since childhood. She worked and made a good living until about three years prior to trial, when she became disabled and unable to work due to severe back problems. After losing her job, C.B. lost her car and her apartment and became homeless. She was a recovering alcoholic, did not take illegal drugs but had taken her medication the day of the incident. Just before dark, C.B. had a drink with a white man who was an acquaintance of hers although she did not know his name. The next thing she remembered was waking up in a vehicle with a different man on top of her trying to put his penis in her vagina. It was so dark she could only see the man's silhouette. When she asked why he was doing this to her, the man cussed at her and tried to enter her from behind. She did not know if his penis contacted her anus because she began to fight him. The man threatened to kill her. When she turned back over, the man reached down, picked up something wooden, and began to beat her with it and with his fists. C.B. became dazed but did not lose consciousness. C.B. did not know Williamson and did not give him permission to have sexual intercourse with her. Although she did not get a chance to look at the man before the police arrived, the man who assaulted her was the same man the police found her with in the car. She did tell the police she was an MHMR patient. She knew her vagina had been penetrated because she was sore and hurting. C.B. told the jury she talked to Detective Munoz at the police department several days after the incident and told him her assailant was a white man. She said she did not know what made her say she was assaulted by a white man as she could not see the man's face. Munoz confirmed what C.B. told him about the race of her assailant but said he did not look for a white man because he knew Williamson, who was black, was the suspect. In his first issue, Williamson contends aggravated assault is not a lesser included offense of aggravated sexual assault and the trial court erred in so instructing the jury. The State counters that under the facts of this case, because the two offenses occurred simultaneously, the aggravated assault with a deadly weapon is a lesser included offense of the aggravated sexual assault. We disagree with the State. Williamson was indicted for two aggravated sexual assault offenses involving C.B. The first indictment alleged he intentionally and knowingly caused the sexual organ of C.B., without her consent, to contact the sexual organ of the defendant and, in the course of the same criminal episode, he used and exhibited a deadly weapon, to-wit: a club. The second indictment alleged he intentionally and knowingly caused the anus of C.B., without her consent, to contact his sexual organ and, in the course of this same criminal episode, he used and exhibited a deadly weapon, to-wit: a club. At the conclusion of the State's case in chief, the defense moved for an instructed verdict on the second indictment arguing that an allegation of contact between the anus of the complainant and the sexual organ of the defendant was not an offense under Texas law. This was the first mention the defense made to the trial court of a deficiency of the second indictment; no motion to quash was filed prior to trial. The State argued that by not filing a motion to quash, "defense counsel has waived any notice problem," and that while the indictment may not have properly charged aggravated sexual assault, the trial court could charge the jury on aggravated assault with a deadly weapon because that charge was included in the indictment. The defense objected that there could be no lesser included offense to a charge that failed to state an offense in the first place, and the trial court lacked jurisdiction to submit either the original indictment or any lesser included offense to the jury. The next morning, the trial court granted the directed verdict on the aggravated sexual assault charge, but ruled in the State's favor on its request for a lesser included offense instruction. Relying on Duron v. State, 956 S.W.2d 547 (Tex.Crim.App. 1997) the court explained, "an indictment under the constitution is sufficient if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." The trial court was not asked by the State and did not modify the defective aggravated sexual assault charge to an offense defined in the penal code. The jury returned a verdict of not guilty on the first aggravated sexual assault, and guilty on the "lesser included offense" of aggravated assault with a deadly weapon in the second case. In his first issue, Williamson argues that aggravated assault with a deadly weapon is not a lesser included offense of aggravated sexual assault. Williamson contends that in light of the "clear sexual nature" of section 22.021(a)(1)(A) of the penal code, this is "the offense charged in the indictment." The aggravated sexual assault indictment charged that Williamson did

unlawfully then and there intentionally and knowingly cause the anus of C.B., hereinafter called the complainant, without the consent of the complainant, to contact the sexual organ of said defendant, and, in the course of this same criminal episode, said defendant did use and exhibit a deadly weapon, to-wit: a club.

The lesser included offense instruction charged that Williamson did

unlawfully then and there intentionally, knowingly or recklessly cause bodily injury to C.B., hereinafter called the complainant; or intentionally or knowingly threaten C.B., hereinafter called complainant, with imminent bodily injury; or intentionally or knowingly cause physical contact with C.B. when CARL LEWIS WILLIAMSON knew or should have reasonably believed that C.B. would regard the contact as offensive or provocative; and in the course of this same criminal episode, said defendant did use or exhibit a deadly weapon, to-wit: a club.

An assault occurs when a person causes bodily injury to another, threatens another with imminent bodily injury, or causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. § 22.01(a) (Vernon Supp. 2005). An aggravated assault occurs when a person commits an assault and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2005). Before addressing the merits of the issue, we note that Williamson does not complain that the indictment failed to properly allege an offense under Texas law, and we do not address that issue. Instead, for purposes of this opinion, we presume the indictment alleged aggravated sexual assault. To determine whether the State or a defendant is entitled to a lesser included offense instruction, the two-prong test requires that (1) the lesser included offense be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005); Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App. 1997). Article 37.09 of the Texas Code of Criminal Procedure outlines the four types of lesser included offenses and provides:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). We begin with subsection (1). An offense argued to be a lesser included offense under article 37.09(1) must be examined by looking at the elements of the offense actually charged, the statutory elements of the offense sought as a lesser included offense, and the proof presented at trial to show the elements of the charged offense. Hayward, 158 S.W.3d at 478. The reviewing court examines the elements of the offense claimed to be a lesser included offense to see if the elements are functionally the same or less than those required to prove the charged offense. Id. The court also examines the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser included offense. Id. Appellant contends that because aggravated assault requires proof of either bodily injury, threatening bodily injury, or causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative, and aggravated sexual assault does not require proof of any of these elements but instead alleges a sexual offense as the underlying assault, aggravated assault cannot be a lesser included offense of aggravated sexual assault under article 37.09(1). The State counters that the same evidence offered to establish the aggravated sexual assault proved the lesser offense of aggravated assault with a deadly weapon. The State contends that the deadly weapon allegation in the charged offense makes the lesser included offense instruction applicable in this case. In support of its argument, the State maintains the evidence shows that Williamson sexually assaulted the complainant vaginally and then attempted to assault her anally. As she resisted the anal assault, he beat her with a club and with his fists, and threatened to kill her. She did not know if Williamson's penis contacted her anus because she began to fight him. This evidence, the State contends, shows Williamson used the deadly weapon while causing bodily injury to the complainant; used the deadly weapon while he threatened to kill the complainant and threatened her with imminent bodily injury; and used the deadly weapon in the process of sexually assaulting the complainant, which was physical contact he should have known she would regard as offensive. The State acknowledges that the sexual assault statute does not require that the actor know the victim would regard the contact as offensive but suggests it should be inferred that an actor who sexually assaults someone would know that the contact is offensive. As support for its position, the State cites Cunningham v. State, 726 S.W.2d 151, 154 (Tex.Crim.App. 1987), where the court of criminal appeals held indecency with a child to be a lesser included offense of aggravated sexual assault. Although the wording of the latter statute did not require a specific intent to arouse or gratify the sexual desire, the elements of the sexual assault statute permitted a reasonable inference of intent to arouse or satisfy one's sexual desire. We find the State's argument unpersuasive. The State in this case did not have to prove the defendant caused bodily injury to the complainant, threatened to cause bodily injury to the complainant, or caused physical contact with the complainant, knowing the contact would be regarded as offensive to prove aggravated sexual assault. The proof of this additional element, although it may be present in the facts of this case, is not required. The State next argues aggravated assault with a deadly weapon is a lesser included offense of aggravated sexual assault under article 37.09(2) if it differs from the offense charged only in that a less serious injury or risk of injury to the same person occurs. The statute contemplates that the less serious injury evolve from the primary injury itself and not be a separate, albeit contemporaneous, injury. A less serious injury than anal/sexual organ contact or anal/sexual organ penetration is not bodily injury sustained from being beaten with a club. While the injury may be lesser, it is nevertheless injury from a different, although contemporaneous, offense. Article 37.09(2) applies to greater and lesser offenses that differ only by the injury or risk of injury, as in the case of aggravated assault involving serious bodily injury and simple assault involving bodily injury. McKinney v. State, 12 S.W.3d 580, 583 (Tex.App.-Texarkana 2000, pet. ref'd) (assault with bodily injury lesser included offense of aggravated assault with serious bodily injury). In this case, aggravated assault with a deadly weapon and aggravated sexual assault were two separate offenses, not two offenses that differed only in the single fact of risk of injury to the complainant. We also reject the State's final argument that article 37.09(4) provides that an offense is a lesser included offense if it consists of an attempt to commit the offense charged or otherwise included offense. That Williamson committed the aggravated assault with a deadly weapon, by hitting the complainant with a club and causing bodily injury, as he was attempting to commit the offense of aggravated sexual assault, again jumps evidentially to a separate and distinct offense from that originally charged. Under the facts of this case, aggravated assault with a deadly weapon is not a lesser included offense of aggravated sexual assault. The trial court erred in instructing the jury on the lesser-included offense. This charge error was not harmless in light of Williamson's conviction for that offense. We sustain the first issue. Our disposition of the first issue makes it unnecessary to address the second issue. See Tex.R.App.P. 47.1. We reverse the trial court's judgment and remand to that court for proceedings consistent with this opinion.