Braun v. State

Full title: BRIAN KEITH BRAUN, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Dec 1, 2004

No. 05-03-01526-CR (Tex. App. Dec. 1, 2004)

Opinion

No. 05-03-01526-CR

Opinion Filed December 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 15th District Court, Grayson County, Texas, Trial Court Cause No. 049018. Affirm.

Before Justices FITZGERALD, RICHTER, and LANG.

OPINION

Opinion By Justice FITZGERALD.

Brian Keith Braun was indicted for sexual assault. The jury found appellant guilty of the lesser-included offense of attempted sexual assault and assessed appellant's punishment at three years' imprisonment and recommended that he be granted community supervision. Appellant brings five points of error contending: (a) the evidence is legally and factually insufficient to support his conviction; (b) the trial court erred in submitting the lesser-included offense of attempted sexual assault to the jury; and (c) the trial court commented on the weight of the evidence. We affirm the trial court's judgment.

FACTUAL BACKGROUND

On the evening of October 4, 2001, appellant, Luke Patterson, and Chris Graves were at appellant's apartment. All three were college students and were younger than twenty-one. Appellant called the dormitory room of a friend, but the complainant answered the telephone. The complainant knew appellant and had been to his apartment before. Appellant invited the complainant to his apartment and asked her if she had any alcohol. The complainant, who was eighteen years old, said she had some vodka that she would sell them. She went to the apartment and sold the three men a 1.75-liter bottle of vodka for five dollars each. At their request, she poured each of them several "shots"-actually wine glasses-full of vodka, which they drank. The men quickly became intoxicated and encouraged her to drink with them. At first, the complainant refused to drink, but she subsequently changed her mind and drank a few glasses of vodka. The complainant called her roommate, Natalie Loving, and asked her to join them, but Loving said she did not have a car. As the complainant and the men drank, their actions became more "silly": Patterson was dancing by himself; Graves tried to see if he could walk in a straight line; and appellant did push-ups with the complainant sitting on his back. According to Graves, appellant and the complainant engaged in "freak dancing,"¹ although the complainant denied it. Before long, Graves passed out on the sofa and remained unconscious until the next morning. Appellant and the complainant moved to the bedroom and sat on the bed. The complainant again called Loving and asked her to join them. Loving said she would ask Leigh Ann Sims for a ride and call her back. Loving could tell the complainant had been drinking, but she testified appellant and the complainant sounded happy, "just like they were bunch of friends together having a good time." Loving called the complainant and told her she could not borrow Sims's car, and the complainant told her to ask Hope. Loving set the phone down and went to Hope's room. When Loving returned to her room, she picked up the telephone again and said "hello," but no one answered her. However, Loving could hear what was happening in appellant's bedroom. Patterson testified he followed appellant and the complainant to the bedroom. When he entered, appellant and the complainant were on the bed kissing. Patterson sat on the bed and started kissing the complainant, but he quickly stopped when he noticed she was not kissing him back. Patterson observed that the complainant was "very drunk." He testified appellant and the complainant continued kissing, but he also testified he could not tell if the complainant was kissing appellant back. Appellant started to take off the complainant's pants, and the complainant said "No. Stop." Patterson testified, "She was kind [of] pleading like don't do this"; however, the complainant did not physically try to stop appellant. The complainant was lying on the bed with her knees at the end of the bed. Appellant undid his pants and got into a "sexual position" with the complainant. Patterson saw appellant moving in a manner consistent with having sexual intercourse, and he heard the complainant "make a sound like that someone would make when they are having sex. It was like a moan." Although Patterson never observed penetration, he testified it was "obvious" and concluded from the sounds and the way appellant was moving that they were having sex. Patterson denied that what he saw "was not sexual intercourse but maybe just a little hip grinding." When Patterson was asked if the complainant appeared to be participating in the sex act, he answered, "Not really, no." The complainant testified she could not remember going from the living room to the bedroom, but she remembered she was lying on appellant's bed with her shirt pulled up above her stomach and her pants undone. Patterson was on the bed next to her and he kissed her, and appellant was on top of her legs kissing her stomach and neck area. The complainant then heard appellant talk to Patterson about having a "three-some" with her,² and she said "no, this not right. This shouldn't be happening." Patterson turned to appellant and said, "she said no." The complainant continued to say "no" while appellant jerked down her pants. The complainant testified she could not do anything to stop appellant because she was so drunk she could not move her arms. She testified she wanted to kick him off of her, but she could not. She testified appellant got between her legs and had oral sex with her.³ Appellant then sat up, looked around the room, and penetrated her vagina with his penis. The complainant testified she was mad at appellant "because he was doing this to me. . . . Emotionally and mentally I hated it." She also testified she started to enjoy it and that it "felt good" even though she hated it. That it began to feel good physically made the complainant feel "[v]ery nasty and very mad at myself." She testified the next thing she remembered was "[w]aking up and nobody being in the room." Meanwhile, Loving was listening on the telephone to what was happening in appellant's bedroom. Loving could tell from the complainant's voice that she was intoxicated. She heard the complainant repeatedly say "no," "stop," and that it did not feel right. Loving then heard heavy breathing and grunting. Loving ran to Sims and told her the complainant was in trouble and they had to go get her. Sims drove them to appellant's apartment, and they banged on the door. Appellant opened the door a few inches, and Loving and Sims burst through the door into the room. They saw appellant standing naked in the room, Graves passed out on the sofa, and Patterson fully dressed. Loving and Sims went to the bedroom, where they found the complainant crying and trying to put on someone else's pants. Loving and Sims found her clothes, and Loving helped her dress while Sims and Patterson found her keys. Patterson told them to get the complainant out of there and he would deal with appellant. The complainant was too intoxicated to walk, and Loving and Sims carried her out of the apartment. When they took the complainant out of the apartment, the complainant said, "They took advantage of me" and "I was violated." Sims asked by whom, and the complainant said it was appellant. As they took the complainant to her car, appellant (now dressed) went after them and asked what they were doing. Loving and Sims put the complainant in the back seat of the complainant's car, and Loving drove the complainant's car. Appellant knocked on the window of the car and told Loving to stop and talk to him because he did not know what was going on. Sims asked appellant, "Why did you do this to her?" and he said, "She made her own choices." Loving drove the complainant to Sims's mother's house, and Sims awakened her mother. The complainant was in shock and still highly intoxicated. She told them she had been raped. Sims's mother called the police, who soon arrived. After talking to the women, the officers went to appellant's apartment and arrested him. At the police station, appellant signed a written statement. In his statement, appellant said he and the complainant flirted and went to the bedroom where they kissed. At some later time, the complainant "sat up from the bed and said she didn't want to do anything. I respected that. Then she went outside to Natalie and Leigh Ann and they left in a car. I did not have sexual intercourse with [the complainant] then or ever. . . . Her clothes never came off." Either shortly before or shortly after they gave statements at the police station, Loving and Sims took the complainant to the hospital where she was examined by a SANE nurse. The complainant told the nurse, "I remember having sex with [appellant]. I remember telling him no." The nurse testified that the complainant had redness to the posterior fourchette and an abrasion to the cervix consistent with sexual assault within the preceding seventy-two hours. Tests of vaginal swabs from the complainant found no trace of semen. Examination of head and pubic hair combings from the complainant found no hairs consistent with appellant's. About a week before trial, a friend of the complainant and of appellant, Christina Johnson, telephoned the complainant and asked her if appellant had forced her to have sex with him. The complainant told her she was too drunk to remember what had happened. The complainant explained to Johnson that her telephone had accidentally dialed a friend who heard her say "no." Johnson testified: "So I asked her, are you sure he forced you then if your friends are the ones that you [sic] heard you say no and she said she was too drunk to remember anything." Appellant was indicted for sexual assault by intentionally and knowingly causing the penetration of the complainant's sexual organ by appellant's sexual organ without the complainant's consent. The jury found appellant not guilty of sexual assault but guilty of attempted sexual assault.

SUFFICIENCY OF THE EVIDENCE

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction for attempted sexual assault. 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 any rational trier of fact could have found the essential elements of the crime 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). 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, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A person commits sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person without that person's consent. Tex. Pen. Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2004-05). A sexual assault is without the consent of the other person if the other person has not consented and the actor knows the other person is unconscious or physically unable to resist. Id. § 22.011(b)(3). A person is guilty of attempting to commit an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a) (Vernon 2003). Appellant argues:

The acquittal of the sexual assault charge was based beyond doubt, upon consent. . . . [I]f the jury acquitted on the basis of consent, to convict [appellant] of attempted sexual assault would be nonsensical. . . . [T]he jury must have found that while [the complainant] consented to intercourse, she did not consent to [appellant's] attempt to have intercourse. This, of course, is an absurdity. . . . [C]onsent to intercourse necessarily includes consent to the acts leading to the intercourse; and that, having been so acquitted, no rational trier of fact could have found the essential element of the offense necessary to convict [appellant] of the lesser-included offense.

(Emphasis omitted.) The State points to testimony that appellant removed the victim's clothing, committed oral sex, and was between her legs moving as though having intercourse as evidence that appellant "committed acts that went beyond mere preparation that tended but failed to complete the crime." We need not speculate on the jury's reason for acquitting appellant of sexual assault. The record shows the complainant testified she was too intoxicated to resist, that she said "no," "stop," and "it doesn't feel right," that appellant removed her pants and his clothes, and that appellant performed oral sex upon the complainant. Viewed in the light most favorable to the verdict, this evidence establishes beyond a reasonable doubt that appellant had the specific intent to commit sexual assault and did acts tending to effect the commission of sexual assault. See Martinez v. State, 278 S.W.2d 156, 157 (Tex.Crim.App. 1955) (defendant, indicted for rape and shown by complainant's evidence to be guilty of rape, was convicted of lesser-included offense of attempt to rape; defendant admitted fondling but denied penetration; conviction affirmed); see also Moreno v. State, 872 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (evidence defendant told complainant he was going to have sex with her, told her to undress, slapped her, pushed her onto bed, threatened her, put a rag in her mouth, but left before committing sexual assault was sufficient to show specific intent to commit sexual assault and acts beyond mere preparation). Likewise, after viewing the evidence in a neutral light, we conclude the evidence is not so weak that the verdict is clearly wrong and unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard of proof could not have been met. See Zuniga, 144 S.W.3d at 484-85. We hold the evidence is both legally and factually sufficient to support appellant's conviction. We overrule appellant's first and second points of error.

JURY CHARGE

In his third point of error, appellant contends the trial court erred in charging the jury on the lesser-included offense of attempted sexual assault. For the trial court to submit a lesser-included offense, the record must meet the two-prong Royster test: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993)). Both prongs of the test must be met, regardless of whether submission of the lesser-included offense is requested by the defendant or the State. Id. (citing Arevalo v. State, 943 S.W.2d 887, 887 (Tex.Crim.App. 1997)). In determining whether the second prong has been met, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Id. (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997)). Anything more than a scintilla of evidence is sufficient to permit submission of the lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999). Whether the instruction should be submitted is determined on a case-by-case basis. See Bartholomew v. State, 871 S.W.2d 210, 212-13 (Tex.Crim.App. 1994). The parties agree the first prong is met. See Tex. Code Crim. Proc. Ann. art. 37.09(4) (Vernon 1981) (attempt to commit offense is lesser-included offense of that offense). Thus, the issue is whether the record contains any evidence showing that if appellant is guilty, he is guilty only of attempted sexual assault. We conclude that Patterson's testimony as to the complainant's verbal protestations, his description of appellant's movements while in a "sexual position" with the complainant, and the complainant's testimony that appellant committed oral sex upon her constitute "some evidence . . . that if the defendant is guilty, he is guilty only of the lesser offense" of attempted sexual assault. Accordingly, we overrule appellant's third point of error.

COMMENT ON THE WEIGHT OF THE EVIDENCE

In his fifth point of error, appellant contends the trial court commented on the weight of the evidence in the charge by instructing the jury that "an `act' means a bodily movement, whether voluntary or involuntary, and includes speech." In Brown v. State, 122 S.W.3d 794 (Tex.Crim.App. 2003), the court of criminal appeals concluded that the instruction in the jury charge, "Intent or knowledge may be inferred by acts done or words spoken," commented on the weight of the evidence because it lacked a statutory basis and it "focuse[d] the jury's attention on the type of evidence that may support a finding of criminal intent." Id. at 802. The trial court's definition of "act," however, has a statutory basis: it is drawn verbatim from section 1.07(a)(1) of the penal code. See Tex. Pen. Code Ann. § 1.07(a)(1) (Vernon Supp. 2004-05). The definition of "act" was relevant to the charge because the application paragraph for attempted sexual assault asked the jury to determine whether "Defendant did then and there intentionally or knowingly, with the specific intent to commit sexual assault of [the complainant], do an act or acts. . . ." Accordingly, the jury instruction defining "act" was not an improper comment on the weight of the evidence. We overrule appellant's fifth point of error. In his fourth point of error, appellant contends the trial court commented on the weight of the evidence in the charge by instructing the jury that "intent or knowledge may be inferred by acts done or words spoken." Under the definition in Brown of a comment on the weight of the evidence, we conclude the instruction "intent or knowledge may be inferred by acts done or words spoken" constitutes a comment on the weight of the evidence. We must next determine whether the error is harmful. Appellant did not object to this instruction in the charge; accordingly, we may not reverse unless the record shows that the error, if any, was so egregiously harmful that the defendant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). In Brown, the court of criminal appeals held the instruction caused no harm to the defendant because it was "mild, neutral, and an obvious common-sense proposition." Brown, 122 S.W.3d at 803. Also, the attorneys in Brown argued about the appellant's intent focusing the jury's attention on the appellant's statements. Similarly, in this case, the erroneous instruction is "mild, neutral, and an obvious common-sense proposition," and the attorneys argued about appellant's intent and the complainant's consent by pointing out their words and actions. Id. Like the jurors in Brown, the jurors in this case did not need any instruction to focus their attention on the acts and words of the parties to determine their intent. We hold appellant did not suffer egregious harm from the erroneous jury instruction. We overrule appellant's fifth point of error. We affirm the trial court's judgment.