Opinion
NO. 12-14-00080-CR
03-09-2016
FELIPE CASTRO, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Felipe Castro appeals his convictions for aggravated sexual assault, assault family violence by strangulation, and aggravated kidnapping. He raises six issues on appeal. We affirm.
BACKGROUND
At around 3:00 a.m. on February 12, 2013, the Crockett Police Department received a 911 call from a homeowner stating that a woman was beating on her door screaming for help. Officer Michael McKay responded to the call, and saw whom he later determined to be Appellant's common law wife (the victim) emerge from behind bushes at the home pleading for help. Officer McKay noticed that she was shaking uncontrollably, nervous, and fearful. He also observed that she had significant swelling on her face and that her eyes were nearly swollen shut. Officer Detric Murray arrived a few minutes later. Also, Corporal Paul Biscamp arrived and shined a light from his vehicle. According to Officer McKay, the victim grabbed his arm because she was fearful that the suspect might have been looking for her and shining the light. The officers discovered from the victim that Appellant inflicted her extensive injuries.
The 911 caller stated that the victim lived nearby. Officers McKay and Murray arrived at the victim's home and observed that the door was open. After repeatedly identifying themselves as police and receiving no reply, the officers made a sweep of the residence to determine whether other victims were present. The officers described the residence as cluttered. After finding no one in the home, they exited the residence, shut the door, and marked it off with crime scene tape.
The officers learned that Appellant and the victim had two children and that Appellant's sister lived with the couple and their children. They also learned that they shared a light blue van. Concerned for the children's welfare, the police began to search for them. As the officers drove towards the home of Appellant's father, they saw a light blue van travelling toward the home. The van ultimately parked there, and the officers found Appellant's sister and his two children inside the van. Almost simultaneously, Appellant exited the home and came towards the officers. The officers detained him without incident.
Detective Vickers and Officer Alfredo Fajardo visited the victim in the hospital at around 5:00 a.m., took a brief statement from her, and returned to the police station at approximately 6:00 a.m. They learned that Appellant wanted to speak with them. Detective Vickers and Officer Fajardo interviewed Appellant, and made an audio recording. In the interview, Appellant stated that the victim had an affair with another man. Appellant admitted that he struck the victim with his hands, feet, and various objects over a several day period. He also admitted choking the victim. He claimed that they had sexual intercourse several times during this period, but that it was consensual.
At the conclusion of the interview, the officers arrested Appellant. He was ultimately charged and indicted on four counts, including two counts of aggravated sexual assault, assault by strangulation, and aggravated kidnapping. After a jury trial, the jury acquitted Appellant of one of the aggravated sexual assault counts, but found him guilty of the remaining three counts. After a punishment hearing, the jury sentenced Appellant to forty years on the remaining aggravated sexual assault charge, ten years on the assault by strangulation charge, and forty years on the aggravated kidnapping charge. The trial court ordered that the sentences be served concurrently. This appeal followed.
MOTION TO SUPPRESS
In his first issue, Appellant contends that the trial court erred in overruling his motion to suppress his interview, because Detective Vickers failed to inform him, when reading him his rights, that he had the right to terminate the interview at any time. Standard of Review
We review a trial court's ruling on a motion to suppress evidence for abuse of discretion and will not disturb that ruling so long as it is within the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). In reviewing such a ruling, we apply a bifurcated standard of review. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010). We give almost total deference to a trial court's determination of historic facts and mixed questions of law and fact that rely on the credibility of a witness. Martinez, 348 S.W.3d at 922-23. But we apply a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Id.
At a suppression hearing, the trial judge is the sole trier of fact and exclusive judge of the credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling if the record supports the finding. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). A trial court's ruling on a motion to suppress will be affirmed if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009) (per curiam). Applicable Law
In order for a recorded interview made during a custodial interrogation to be admissible evidence, Texas law requires that the accused be advised of his right to terminate the interview. See TEX. CODE CRIM. PROC. ANN. Art. 38.22 §§ 3(a)(2), 2(a)(5) (West Supp. 2015). The right to terminate an interview is an additional warning that the Texas Legislature granted suspects when it codified the Miranda warnings by creating Article 38.22, Section 2(a) of the Texas Code of Criminal Procedure. See Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex. Crim. App. 1996); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) ("The warnings provided in Section 2(a) are virtually identical to the Miranda warnings, with one exception—the warning that an accused 'has the right to terminate the interview at any time' as set out in Section 2(a)(5) is not required by Miranda.") (footnotes omitted). Thus, the statutory warnings provide an additional safeguard for the invocation of an accused's Fifth Amendment right against self-incrimination. See Perillo v. State, 758 S.W.2d 567, 575 (Tex. Crim. App. 1988).
However, Section 3(c) states that the warnings required by Section 3(a) "shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed." TEX. CODE CRIM. PROC. ANN. Art. 38.22, § 3(c). Under this exception, oral statements asserting facts or circumstances establishing the guilt of the accused are admissible if, at the time they were made, they contained assertions unknown by law enforcement but later corroborated. Woods v. State, 152 S.W.3d 105, 117 (Tex. Crim. App. 2004). Such oral statements need only circumstantially demonstrate the defendant's guilt. Id. If even a single assertion of fact in such an oral statement is found to be true and conducive to establishing the defendant's guilt, the statement is admissible in its entirety. Id.Discussion
Appellant argues that his interview was a custodial interrogation, and that Detective Vickers read him his Miranda warnings, but failed to advise him of the additional requirement under Article 38.22 that he could terminate the interview at any time. Consequently, he asserts, the statements he made during the interview are inadmissible. The State contends that the interview was not a custodial interrogation, that Appellant voluntarily asked to speak with the police, and that in any event, the statement is admissible under Article 38.22, Section 3(c).
We note that Appellant was detained in handcuffs and transported to the police station. He waited for approximately two to three hours under watch by a police officer. At some point while he was waiting, Appellant asked to speak with the police to provide a statement. After they returned from interviewing the victim, Detective Vickers read Appellant his Miranda warnings. It is undisputed that the detective failed to inform Appellant that he had the right to terminate the interview at any time. Detective Vickers then interviewed Appellant, and made an audio recording of it.
Irrespective of whether the interview was a custodial interrogation, a question we need not reach, we hold that the exception under Article 38.22, Section 3(c), applies to this case. Appellant argues that the police already had the information that he provided to them, because they had already interviewed the victim and discovered the same information. We disagree. Appellant provided new information unknown to the police when they interviewed him, which they discovered to be true during their subsequent search of the residence. Specifically, during her initial interview, the victim told officers at the hospital that Appellant used his fists and feet to assault her, beat her with "sticks," used a knife to cut her back, and burned her with an electric heater. She told them the location of the heater, which was inside the home. However, she never mentioned where the "sticks" were located, and provided no further description of the items. During Appellant's interview, he revealed that he used a chair in the assault, and that it broke. And he also provided details as to the location of the chair's constituent pieces. And he explained further that the victim threw some of the pieces out of a window after each assault. The officers used this information in applying for a search warrant. As a result of the search, they discovered what appeared to be pieces of the broken chair at or near where Appellant described, including pieces of the chair that were located outside the home.
Appellant nevertheless points to a statement by the victim to the officers that Appellant used the chair, a vacuum cleaner, brooms, a metal curtain rod, and other items during the assaults. But Investigator Fajardo testified that the police did not learn this from the victim until a second interview with her that took place a day after the search confirmed the information provided by Appellant. Detective Vickers testified at the suppression hearing that, in her recorded statement, the victim mentioned Appellant's use of a chair in the assault. But the recording does not reflect that he struck her with anything but his fists and feet, "sticks," a knife, and the electric heater. It was for the trial court to resolve any factual inconsistencies. See St. George, 237 S.W.3d at 725. We defer to the implied finding made by the trial court that Investigator Fajardo's statements regarding the police's knowledge were true, and that the police did not discover the chair was used in the assaults or its location until they interviewed Appellant.
Appellant filed a request for findings of fact and conclusions of law, but the trial court did not issue them. He does not complain about this omission on appeal.
In conclusion, Appellant provided new information that was unknown to the police after they interviewed the victim, but before they interviewed Appellant. Appellant's disclosure that he used the chair and where its broken pieces were located was new information concerning one of the weapons used to commit the assaults. Upon searching the residence, the investigating officers determined that this information was true. And the evidence they found as a result of Appellant's admission corroborates his statements and is conducive to establishing his guilt. Therefore, the trial court did not err in overruling his motion to suppress and admitting the entire recorded statement. See Santana v. State, 714 S.W.2d 1, 14 (Tex. Crim. App. 1986) (holding defendant's custodial statement as to location of weapons was admissible under subsection 3(c), despite fact that codefendant gave police same information just prior to defendant's statement, because police were unable to verify truth of statement until weapons were actually discovered).
Appellant's first issue is overruled.
SUFFICIENCY OF THE EVIDENCE
In his second and third issues, Appellant challenges the sufficiency of the evidence to support his conviction for aggravated kidnapping and aggravated sexual assault, respectively. Because both issues challenge the sufficiency of the evidence to support his convictions, we address them together. Standard of Review
The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.—San Antonio 1999, pet. ref'd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the trier of fact's credibility and weight determinations, because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. A "court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Aggravated Kidnapping
443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979).
In relevant part, a person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to inflict bodily injury on her or violate or abuse her sexually. TEX. PENAL CODE ANN. § 20.04(a)(4) (West 2011). "Abduct," as applicable here, means to restrain a person with intent to prevent her liberation by secreting or holding her in a place where she is not likely to be found. Id. § 20.01(2)(A) (West 2011). "Restrain" means to restrict a 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)(A). Restraint is "without consent" if it is accomplished by force, intimidation, or deception. Id.
"Restraint" is the actus reus requirement of "abduction," while the specific intent to prevent liberation by secreting or holding another where she is not likely to be found is the mens rea requirement. Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). Thus, the State is not required to prove that the defendant actually secreted or held another, but instead must prove that the defendant restrained another with the specific intent to prevent liberation by secreting or holding the person. Id. The offense of kidnapping is legally completed when the defendant, at any time during the restraint, forms the intent to prevent liberation by secreting or holding another in a place where the victim is unlikely to be found. Id. Intent can be inferred from an accused's conduct, remarks, and the surrounding circumstances. West v. State, 406 S.W.3d 748, 759 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Keeping a victim isolated from anyone who might have been of assistance meets the element of secreting or holding in a place where the victim is not likely to be found. Laster, 275 S.W.3d at 521; Moreno v. State, 413 S.W.3d 119, 133 (Tex. App.—San Antonio 2013, no pet.); Megas v. State, 68 S.W.3d 234, 240 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Finally, there is no requirement that the defendant intend to secrete or hold the victim for any minimum length of time. Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980).
Appellant argues that the victim was left alone at the residence at times, that Appellant and the victim were seen in public places together, and that the victim was in the presence of third parties. Accordingly, Appellant contends that the evidence is insufficient to support the finding that he formed the specific intent to prevent her liberation by secreting or holding her in a place where she was not likely to be found.
Appellant does not challenge the evidence to support any other element of the offense.
During Appellant's interview, which was admitted into evidence at trial, he stated that throughout the week of the assaults, he would periodically "allow" the victim to go outside for some fresh air. On one of these occasions, Appellant explained, the victim was naked and hid behind the shed. Appellant admitted that, after initially being unable to lure the victim back inside, he was able to convince her to return under the ruse that if people were to see her naked in her condition, the authorities would take their children from them. Furthermore, Appellant admitted that had she attempted to leave, he would have prevented her because he was afraid she would seek assistance. The victim testified that Appellant threatened her with assaults and death if she attempted to leave, that she attempted to leave the home prior to her actual escape, and that Appellant prevented her escape, pushed her to the ground, and attacked her.
Although some of the details varied, the victim confirmed at trial that this occurred.
At other times during his interview, and during his testimony at trial, Appellant denied that the victim was not free to leave the residence.
Appellant nevertheless points out that they visited his father's home to take baths, Radio Shack, Walmart, a sporting goods store in Palestine, and the zoo in Lufkin during that week. He contends this is evidence that he did not form the intent to secrete or hold her in a place where she was not likely to be found. The victim did not recall that she took a bath at the home of Appellant's father that week, went to the zoo, or went to Palestine. Appellant's sister testified that the victim did not take a bath that week, because they did not want Appellant's father to discover the abuse. Appellant offered photos of their visit to the zoo, but only the victim's children appeared in the photo.
Video surveillance recordings from Walmart and Radio Shack were admitted into evidence. The Walmart video shows that only Appellant entered the store. The Radio Shack video shows that after entering and leaving by himself, Appellant reentered the store with the victim to purchase cellular phones. The victim testified that she entered the store because Appellant had poor credit and he needed her credit rating to purchase the phones for them. It is true that she was alone for a period of time with a sales associate. The victim wore clothing, including a hooded jacket, that concealed the full extent of her injuries. She testified that she made eye contact with the sales associate, hoping he would call the authorities. She initially thought he might because he went to the back of the store for an extended period of time. She testified that she wanted to ask for help, but she was weak and had a difficult time talking due to her extensive injuries. She was also afraid of Appellant because of his threats and continuous physical and sexual abuse. She testified that she was unable to drink or eat much the entire week of the assaults, and was in a weakened state due to the continuous assaults.
However, the victim admitted on cross-examination to speaking with the associate about the phones.
One of the victim's injuries included kidney failure from extended dehydration and serious muscle trauma from the assault.
Appellant also points to the fact that the victim's coworker came to pick her up from home on Thursday and Friday during the relevant period. The abuse took place from Thursday through early Tuesday morning. The victim worked Monday through Friday. She testified that her ride to work was an acquaintance of Appellant's father, and that all of them, including Appellant, worked at the same facility at one point. The victim stated she was afraid to seek help from the person providing her ride because she was not sure whether she was on Appellant's side. So the victim explained that she did not answer the door when her ride arrived. She did not go to work on Thursday, Friday, or Monday due to the extent of her injuries.
Appellant also claims that the victim was left alone on occasion during the episodes. However, Appellant was unemployed at the time of the assaults. And the victim testified that the only time she was left alone was on the day of her escape. She did not have her own vehicle, and the home did not have a phone. Prior to the Radio Shack visit on the night the victim escaped, only Appellant's sister had a cellular phone. It was for the jury to resolve any inconsistencies in the testimony, and to credit or discredit the testimony of the witnesses. See Brooks, 323 S.W.3d at 899.
The victim testified that when she escaped, she had been struck by Appellant again and saw an opportunity when Appellant left the room. She grabbed one of the wood pieces to defend herself and ran down the street. Appellant chased after her, first telling her to be quiet because his brother, who lived on the same street, might hear her. Then he told her that if she wanted to see her children again, she needed to stay. She banged on the neighbor's door for help. Appellant ceased his pursuit, changed direction, and then made his escape, eventually arriving at his father's home.
Viewing the evidence in the light most favorable to the verdict, a rational jury could have concluded that Appellant's intimidating threats, his prevention of the victim's escape, and his continuous physical and sexual abuse, along with her weakened state as a result of the prolonged assaults, effectively isolated her from anyone who could have assisted her. Furthermore, under these facts, the jury could have arrived at this conclusion even though she was with or near Appellant in public places, left alone during a small fraction of the ordeal, and located in the presence of third parties on occasion. See Cortez v. State, 738 S.W.2d 372, 374 (Tex. App.—Corpus Christi 1987, no pet.) (holding evidence was sufficient to support aggravated kidnapping secretion element even though defendant left victim alone at home on occasion during weeklong assault, defendant was seen with victim in public at convenience store, victim was allowed to walk with third party in field near home, and neighbor visited home during captivity, because victim's weakened condition and defendant's actions and threats effectively isolated her). Accordingly, the evidence is sufficient to support the jury's finding that Appellant intended to secrete or hold the victim in a place where she was not likely to be found. Therefore, the evidence is sufficient to support Appellant's conviction for aggravated kidnapping. Aggravated Sexual Assault
Appellant argues that the evidence is insufficient to support the finding that he caused serious bodily injury to the victim. "Serious bodily injury" is 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." TEX. PENAL CODE ANN. § 1.07(a)(46) (West Supp. 2015). "[T]here are no wounds that constitute 'serious bodily injury'" per se. Jackson v. State, 399 S.W.3d 285, 292 (Tex. App.—Waco 2013, no pet.) (quoting Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El Paso 1997, no pet.)). Instead, we must determine whether an injury constitutes serious bodily injury on a case by case basis, evaluating each case on its own facts to determine whether the evidence is sufficient to permit the finder of fact to conclude that the injury fell within the definition of "serious bodily injury." See Moore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987); Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).
Whether a "bodily injury" is "serious," in terms of the Texas Penal Code, does not depend solely upon whether the victim received medical treatment. See Webb v. State, 801 S.W.2d 529, 533 (Tex. Crim. App. 1990); Moore, 739 S.W.2d at 354. However, in evaluating the evidence supporting serious bodily injury, courts consider whether the injury would be permanently disfiguring without medical treatment. See Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980), overruled on other grounds, Hedicke v. State, 779 S.W.2d 837, 840 (Tex. Crim. App. 1989) (concluding evidence that a broken nose would cause disfigurement and dysfunction if untreated sufficient to establish serious bodily injury). We consider the extent of injury at the time it was inflicted, not after the effects have been ameliorated or exacerbated by medical treatment. Miller v. State, 312 S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
Likewise, the fact that an injury causes scarring is not sufficient, on its own, to establish serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996, pet. ref'd). In assessing the disfigurement, the record must support "some significant cosmetic deformity" in order to conclude that the evidence of serious bodily injury is sufficient. Compare Hernandez, 946 S.W.2d at 113 (finding evidence of one-inch scar from stab wound in addition to a surgical scar insufficient to elevate "bodily injury" to "serious bodily injury"), and McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996, pet. ref'd) (concluding evidence of slight scar on lip, though permanent, was not sufficient to show serious permanent disfigurement), with Moore v. State, 802 S.W.2d 367, 369-70 (Tex. App.—Dallas 1990, pet. ref'd) (finding sufficient evidence of serious bodily injury where victim's cheekbone was fractured in three places and surgery was needed to prevent significant cosmetic deformity), and Pitts v. State, 742 S.W.2d 420, 421-22 (Tex. App.—Dallas 1987, pet. ref'd) (concluding evidence of significant disfigurement was sufficient where victim suffered five facial fractures necessitating several surgeries to repair damage).
A protracted loss or impairment of the function of any bodily member or organ, to qualify as a serious bodily injury, need not be permanent. Moore, 739 S.W.2d at 352. But it must be either "continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending." Id.
Serious bodily injury may be established without a physician's testimony when the injury and its effects are obvious. See Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref'd); see Carter v. State, 678 S.W.2d 155, 157 (Tex. App.—Beaumont 1984, no pet.). The person who sustained the injury at issue is qualified to express an opinion about the seriousness of that injury. See Hart v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. [Panel Op.] 1979); Jackson, 399 S.W.3d at 292. In determining whether bodily injury is serious, the jury may apply its common sense, knowledge, and experience gained in the ordinary affairs of life as it draws reasonable inferences from the evidence. Eustis, 191 S .W.3d at 884.
The assaults took place over approximately five days. The victim testified that Appellant struck her with a belt over 100 times, including on her face, and even broke the belt buckle on her, but kept attacking her with it. She stated that after forcing her to "get on all fours," Appellant hit her repeatedly with a broom across her back until it broke. She said he then hit her multiple times with a large wooden chair across her back until it broke, and then continued hitting her with the remnants of the chair. The victim also testified that he struck her with a metal curtain rod several times, including on her head, and with a vacuum cleaner.
According to the victim, Appellant pummeled her with his fist multiple times in the face, causing her orbital bone and maxillary sinus bone to break, which resulted in significant swelling over her entire face, including swelling her eyes shut. He "sat" on her, which prevented her from breathing, and choked her with his shirt approximately three or four times, causing her to lose consciousness twice. He also forced her to the ground while she was naked and burned her on several parts of her body with a hot space heater. In addition, the victim related that Appellant cut her on her arms and legs with a pocket knife, and that he also used the knife to carve the name of the man she had an affair with on her back. Several photos depicting the victim's injuries were taken at the hospital and admitted into evidence. The photographs were consistent with the injuries she described.
Appellant grabbed her hair with the other hand to obtain more power with his striking hand. --------
Appellant testified at trial. He admitted that he struck the victim several times in the face, stomach, and chest, and he acknowledged that she had a significant amount of swelling. He also admitted striking her with the belt until the buckle broke. He conceded that he struck her with the chair and a metal curtain rod, burned her with the heater, and attempted to carve the name of the man she had the affair with on her back. He stated that he also sliced her back many times with the knife. He admitted that he kicked her legs from her ankles up to her knee, thigh, and vaginal area. Although he was unsure how long the assaults occurred, he admitted "it was a long time," and that she was in "terrible shape." He also confirmed that he choked her.
Dr. Peter Sanni-Thomas, the emergency room physician at East Texas Medical Center (ETMC) Crockett, testified that he treated the victim. He testified that he and his staff stabilized her, and that her injuries were severe enough that she needed to be transported to the intensive care unit at ETMC Tyler for extensive treatment. He described her injuries, including that she had multiple contusions and abrasions on her body, facial swelling, tenderness, burns, and lacerations. He also diagnosed her with acute renal failure from muscle trauma. He testified that this injury is serious, and can result in death if untreated. Specifically, he testified as follows:
A. If you have too much of that enzyme, it becomes cytotoxic to the kidney itself. It becomes dangerous and not functional. The kidney will, basically, just shut down.
Q. Is that what was happening in her case?
A. That is what was happening in her case.
Q. Is that an injury that you would consider serious?
A. Yes, if not lethal.
Q. Okay. If untreated -- if untreated, what would happen?
A. A person could die.
He also stated that she had a broken orbital bone and maxillary sinus bone, and that anytime a skull fracture is present, it is a serious injury. He stated that
[i]n her case, she had fractures to the orbital wall, which can cause an impingement on the nerves, causing blindness. There's -- you could have intracranial bleeding with regards to -- or it could shear some of the vessels that are lined within the eye socket, so it can be serious.On cross-examination, Dr. Sanni-Thomas stated there was no evidence of intracranial bleeding. However, he said the CAT scan showed minimal bleeding. With respect to the nerve impingement, Dr. Sanni-Thomas stated on cross-examination as follows:
Q. And then with regard to -- you said there's also a danger of pinched nerves that could cause blindness.
A. That's correct.
Q. Did I say that right?
A. Depending on the location of the fracture in the eye socket, you could actually...
Q. Did that -- did that happen?
A. Not in her case.
Appellant refers to the medical records at ETMC Tyler showing that the victim's conditions improved during her stay to the point that she had "no visual problems or difficulties," her elbow has "full range of motion," she is in "no pain," her "renal failure [is] improving," and she has "no other problems or difficulties." These records are progress notes that show how her conditions improved with treatment over the course of her several day stay in the intensive care unit. However, as we have stated, the question is the degree of risk of death that the injury caused, or the disfiguring or impairing quality of the injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment. See Stuhler v. State, 218 S.W.3d 706, 714 (Tex. Crim. App. 2007).
Moreover, the victim testified at trial that due to the sexual abuse, she continues to have a difficult time using the bathroom, and that she sometimes bleeds out of her anus. She testified that she continues to see dots and lines, and has blurred vision as a result of the surgical insertion of the plate under her eye on her face. She also testified that she often has dry eyes and that the side of her face and lip are numb. She believes these conditions are also because of the orbital plate. She stated that, according to her doctor, her numbness should have resolved itself within six months of the surgery, but her symptoms persist. Finally, she testified that many of her scars will likely permanently remain on her body, including on her back, legs, and arms, including some of the burns from the heater.
A rational jury, applying its common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences from the evidence presented to it, could have reasonably concluded that these injuries qualify as serious bodily injuries. Therefore, the evidence is sufficient to support Appellant's conviction for aggravated sexual assault. See Sizemore v. State, 387 S.W.3d 824, 830 (Tex. App.—Amarillo 2012, pet. ref'd); Eustis, 191 S.W.3d at 884.
Appellant's second and third issues are overruled.
LESSER INCLUDED OFFENSE
In his fourth issue, Appellant argues that the trial court erred in overruling his request for a lesser included offense instruction on sexual assault. Standard of Review and Applicable Law
We apply a two-step process to determine whether a defendant was entitled to an instruction on a lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). First, we determine whether the offense qualifies as a "lesser included offense" under Texas Code of Criminal Procedure Article 37.09. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). This is a question of law. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Next, we determine whether there is some evidence that would have permitted the jury to rationally find that, if the defendant was guilty, he was guilty only of the lesser offense. Id. at 536.
Although the threshold showing for an instruction on a lesser included offense is low—more than a scintilla of evidence—the evidence must establish that the lesser included offense is a valid and rational alternative to the charged offense. Hall, 225 S.W.3d at 536. "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted." Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Discussion
The parties correctly agree that, as charged, sexual assault is a lesser included offense of aggravated sexual assault. Aggravated sexual assault and sexual assault require proof of the same acts, except that as charged, the aggravating factor for aggravated sexual assault required proof that Appellant caused serious bodily injury to the victim. Compare TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2011) (sexual assault) with TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(A)(i) (West Supp. 2015). Therefore, the first prong is met.
With regard to the second prong, Appellant contends there was a fact question as to whether he committed the relevant aggravating element—serious bodily injury. Accordingly, his argument continues, the jury should have been instructed on the lesser included offense of sexual assault. As we fully described in our discussion of Appellant's third issue, the evidence was overwhelming that Appellant inflicted serious bodily injury upon the victim. Among other things, Dr. Sanni-Thomas testified unequivocally that the victim's renal failure was serious, and could be lethal absent treatment. Moreover, the victim testified concerning the lasting effects of her injuries. There is no evidence negating the fact that at least some of her injuries were "serious." Consequently, taking all of the evidence of her extensive injuries together, there is no evidence that would allow a rational jury to conclude that Appellant was guilty only of the lesser included offense of sexual assault. The trial court did not err in denying Appellant's request to instruct the jury on the lesser included offense of sexual assault.
Appellant's fourth issue is overruled.
IMPROPER JURY ARGUMENT
In his fifth and sixth issues, Appellant argues that the trial court erred in overruling his objections to the State's jury arguments that were outside the record and its misstatement of the law during the punishment phase of trial. Because both issues relate to jury argument, we address these issues together. Standard of Review and Applicable Law
We review a trial court's ruling on an objection to improper jury argument for abuse of discretion. See Garciav. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). The law provides for, and presumes, a fair trial free from improper argument by the prosecuting attorney. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).
Counsel is generally given wide latitude in drawing inferences from evidence as long as they are reasonable, fair, legitimate, and offered in good faith. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Matters of common knowledge may be incorporated into final argument without express support in the evidence. Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981).
A plea for law enforcement is proper argument and may take many forms, including arguments that draw on the jury verdict's impact on the deterrence of crime in general and the community at large. See Borjan v. State, 787 S.W.2d 53, 55-56 (Tex. Crim. App. 1990) (observing that state may argue jury should deter specific crimes by its verdict); Nelson v. State, 881 S.W.2d 97, 102 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The state may request the jury to represent or be the voice of the community when reaching its verdict. See Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984). The state may also properly remind the jury that its decision can reflect a desire for strong law enforcement. See Goocher v. State, 633 S.W.2d 860, 864-65 (Tex. Crim. App. 1982).
Even when an argument exceeds the permissible bounds of proper argument, it is not reversible unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The remarks must have been a willful and calculated effort on the part of the state to deprive a defendant of a fair and impartial trial. Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). In determining whether improper jury argument warrants a mistrial, we balance three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). A mistrial is an appropriate remedy only in extreme circumstances and is reserved for a narrow class of highly prejudicial and incurable errors. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Discussion
In his fifth issue, Appellant argues that the State injected new facts not in evidence during its argument on punishment in arguing that "the sexual assault and kidnapping are 'not seen' or 'not typical' in crimes involving family violence," that "it is typical for a defendant to be remorseful," and that "there are a whole lot of inmates in prison that would look at Appellant's conduct and find it so heinous as to recoil in disbelief." Taken in context, these arguments are responses to Appellant's arguments, proper pleas for law enforcement, or reasonable deductions from the evidence.
Appellant argued that he had very little prior criminal history, none of which indicated that he was a violent person. He also presented many character witnesses—family members, friends, and one of his children's teachers, along with coworkers and supervisors—who testified that Appellant is a good man, husband, and father. Appellant contended that this conduct resulted from an out of character jealous rage upon learning that the victim had been involved in an affair. He also testified to the jury that he was remorseful for the pain he caused the victim, their children, and his family. Finally, he argued that he had been in jail for nearly a year awaiting trial, that he has been a model inmate who has not been involved in any incidents with other inmates, and that the county jail staff gave him a job in the kitchen working with sharp objects because he was trustworthy. In essence, he presented this argument to the jury to show that he had already served enough jail time, he is a good man who performed a bad deed in a jealous rage, he is not a danger to society, and the jury should consider placing him on community supervision or assessing a short term of imprisonment.
In response, the State argued that although there are some similarities to this case and typical domestic violence cases—for example, that violence often occurs as a response to infidelity—this case has unusual facts reflecting that Appellant's abuse was cold, calculated, and required a more severe punishment. The State pointed to the overall magnitude of the abuse, the fact that this abuse occurred over a several day period in many separate incidents, and the fact that he systematically placed the victim in such fear that she was effectively isolated from anyone who might have assisted her. The State also pointed to evidence that Appellant took the victim into public places to obtain items he wanted, but only when he needed her, and did not even care enough to obtain pain medication for her, despite the severity of her injuries. The State argued that this conduct showed, while he was in his normal mental state, that he was indifferent to the victim's wellbeing. The State contended that these were not the acts of a good man who performed bad deeds in an isolated incident. It argued that the attacks subsided only when the victim escaped, and that they might otherwise have ceased only upon her death.
The State informed the jury that it is typical for people who are in trouble to be remorseful when facing a term of imprisonment, but that the jury should not consider that in Appellant's case. This is a matter of common knowledge that the jury could apply without any express evidence in the record. Instead of providing lenience to Appellant, the State urged, the jury should, as part of its duty in assessing punishment, send a message to deter criminals who engage in this type of behavior. This is a proper plea for law enforcement.
As part of this argument, the prosecutor speculated that "there are plenty of people in prison today doing a whole bunch of time that I suspect would look at this kind of case and go, I cannot believe he did that." This is in part a response to Appellant's argument that he is a model inmate, that he had not been in trouble while in jail, and that he is a good man who has served enough confinement in the county jail. It also was part of the State's plea for law enforcement.
In his sixth issue, Appellant contends that the State incorrectly stated the law, which confused and misled the jury in assessing punishment. Specifically, the prosecutor told the jury as follows:
[PROSECUTOR]: Now he wants to talk about how he doesn't have this horrible history, but ladies and gentlemen, if you separated these three offenses if he committed one and was convicted of it and committed the next one and convicted and committed the next one and convicted he wouldn't be probation there's no way for giving him probation then AND the minimum would be a whole lot higher[;] more like 25 to 99 or life -
[The trial court overruled Appellant's objection that it is a misstatement of the law.]
[PROSECUTOR:]: Ladies and gentlemen, each time he gets convicted, it goes up. I don't want you to give him the benefit of having done all these heinous crimes all at one time. That's what he wants you to do. But, ladies and gentlemen, that is just not a normal offense.
This is a correct statement of the law generally, even though it does not apply to the facts of Appellant's case. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2015). The prosecutor explained that the habitual offender statute does not apply to this case. It is clear that the purpose of the State's argument on this issue was to counter Appellant's argument that he did not have a significant criminal history and that he should be placed on community supervision or assessed a short term of imprisonment.
Even if these arguments were improper, this case is not within the narrow class of cases warranting a mistrial. Following the one objection sustained by the trial court, Appellant did not seek an instruction to the jury to disregard the statement. The State asked the jury for fifty years on each of the first degree felonies and the maximum for the assault by strangulation count. The jury acquitted Appellant of one of the sexual offenses, and gave him the maximum of ten years of imprisonment for the assault by strangulation counts. The jury could have given him life imprisonment on the remaining two first degree felony counts, but decided to give him forty years of imprisonment on each count. The evidence of his guilt was overwhelming, and the nature and extent of the injuries he inflicted upon the victim would justify a lengthy punishment. We cannot conclude that he was harmed by the arguments or that they were a willful and calculated effort on the part of the State to deprive Appellant of a fair and impartial trial.
Appellant's fifth and sixth issues are overruled.
DISPOSITION
Having overruled Appellant's six issues, we affirm the judgment of the trial court.
GREG NEELEY
Justice Opinion delivered March 9, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
JUDGMENT
Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 13CR-058)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.