Opinion
No. 05-04-01686-CR
Opinion Filed December 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-73961-JQ. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
A jury convicted Juan Antonio Hernandez of attempted aggravated sexual assault and assessed punishment at five years confinement. In six issues, appellant contends the evidence is legally and factually insufficient both to support the jury's verdict and to support the deadly weapon finding and the trial court failed to deliver jury instructions regarding his eligibility for parole and the burden of proof on evidence of an extraneous offense. We affirm. In his first four issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict and to show he used or exhibited a deadly weapon. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any 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). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support a finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Under either review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). A defendant commits aggravated sexual assault by, among other means, intentionally or knowingly causing the penetration of another person's sexual organ by any means, without the person's consent, and uses or exhibits a deadly weapon during the offense. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2005). A defendant commits an "attempt" offense if, with specific intent to commit an offense, the defendant performs an act amounting to more than mere preparation that tended but failed to commit the offense. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). An attempt to commit an aggravated offense requires a showing that an element that aggravates the offense accompanied the attempt. See id. at § 15.01(b). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2005). The indictment in this case alleged appellant used his hand as a deadly weapon by "intentionally and knowingly rubbing and grabbing the complainant's sexual organ with said defendant's hand and squeezing the complainant's neck with said defendant's hand. . . ." Hands may qualify as deadly weapons if the evidence shows they were used in a manner capable of causing death or serious bodily injury. See Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983); Judd v. State, 923 S.W.2d 135, 140 (Tex.App.-Fort Worth 1996, pet. ref'd). The State's evidence showed the complainant was an assistant manager at an apartment complex managed by her mother, Odilia. One of the complainant's duties was to show vacant apartments to prospective tenants. On the day of the offense, appellant inquired at the leasing office about renting an apartment. When Odilia forgot to ask him for identification, appellant voluntarily produced his driver's license and social security card for her to photocopy. After Odilia photocopied appellant's identification, she asked the complainant to show a vacant apartment to appellant. During the walk from the leasing office to the vacant apartment, appellant flirted with the complainant to the point where she felt uncomfortable. Despite her uneasiness, the complainant proceeded to the apartment and appellant followed her inside. To ensure her safety when showing an apartment, the complainant usually leaves the front door open and she does not accompany the prospective tenant into the bedrooms. In this case, however, appellant closed the front door almost completely behind him without attracting the complainant's attention. After appellant toured the apartment, as the complainant turned to open the door, appellant grabbed her from behind, threw her on the floor, grabbed her breasts and "private part," and put his finger inside her vagina. The complainant struggled and asked appellant to stop. The complainant described appellant as having an angry look on his face. Appellant pulled his hand from the complainant's vagina when she dislodged him and almost tipped him off of her. When the complainant prepared to scream, appellant grabbed her by the throat with his hand and choked her until she saw "black" and almost passed out. The complainant thought that she was going to die. With what she thought was her last breath, the complainant pushed appellant off of her and left the apartment. The complainant walked quickly back to the leasing office with appellant following her. When the complainant entered the leasing office, Odilia was speaking with a couple of prospective tenants. Odilia thought the complainant appeared to be frightened but she did not notice anything wrong. At trial, the complainant testified that she was scared, nervous, and in shock when she returned to the leasing office. She did not tell her mother what had happened because appellant was right behind her. The complainant walked straight to a back office while appellant, acting as if nothing had happened, obtained some information about the apartment from Odilia. Odilia and her prospective tenants followed appellant outside and she saw him climb into a car where a woman was waiting for him. The complainant tried to call her sister and then called her friend Clemencia who lived at the apartment complex. After showing an apartment to the other prospective tenants, Odilia returned to the leasing office and discovered the complainant crying and shaking. The complainant testified that Odilia asked her what her boyfriend had done to her. After the complainant told her what happened, Odilia called the police. The complainant testified that appellant hurt her neck and back. At the time, she thought incorrectly that her tailbone might be broken. The complainant had a black eye and carpet burns on her back. Two days after the offense Detective Michael Epple photographed the complainant's injuries. Epple's photographs were admitted into evidence at trial. Appellant was charged with attempted aggravated sexual assault because the complainant was too ashamed to tell the police that appellant had penetrated her vagina with his finger. Undisputed evidence established appellant's identity as the alleged perpetrator. Odilia had photocopied appellant's driver's license and social security card before he toured the apartment. While investigating the offense, Epple and the complainant discovered appellant's water cup was still in the vacant apartment. Epple matched two fingerprints from the water cup to a set of appellant's fingerprints he took during the trial. Both the complainant and Odilia picked appellant's photograph from a photographic lineup and both women identified appellant in court. Appellant gave the police a voluntary statement and he testified at trial. Appellant denied committing the offense. Appellant testified that he had gone to the apartment complex just to get information while his family waited in the car but the complainant insisted on showing him the apartment. The complainant flirted with him on the way to the apartment and during his tour. Appellant flirted back, but he also informed the complainant that he was in a relationship. Appellant estimated that he spent five minutes in the apartment with the complainant and that only ten minutes elapsed from the time he first entered the leasing office to the time he left with the information. Appellant testified that Odilia could not have seen him depart because after leaving the leasing office, he spent thirty minutes in the parking lot changing a flat tire. Appellant admitted that he drank water from a cup, but he said he did not get the water until after he returned to the leasing office. Appellant testified that he spoke to Odilia in the complainant's presence when they returned from viewing the apartment and that he did not see any other prospective tenants in the office. Appellant contends that the conflicts in the testimony and the complainant's composed appearance immediately after the alleged assault render the evidence legally and factually insufficient to support the jury's verdict. Appellant contends the deadly weapon finding is not supported by legally and factually sufficient evidence because neither the testimony nor Epple's photographs show the presence of any bruises on the complainant's neck. Appellant hypothesizes that choking someone to the verge of unconsciousness would necessarily produce bruising. Appellant's sufficiency issues challenge the complainant's credibility and invite the Court to find appellant's version of events to be more credible than the complainant's narrative. We are not in a position to reevaluate the credibility of the witnesses. See Jones, 944 S.W.2d at 647-48; Harvey, 135 S.W.3d at 717. The jury obviously found the complainant's testimony to be credible and her testimony, even if uncorroborated, would be legally sufficient to support the jury's verdict. See Sims v. State, 84 S.W.3d 768, 774 (Tex.App.-Dallas 2002, pet. ref'd). In this case, however, the complainant's testimony is further supported by the evidence of visible injuries she suffered during the assault and her crying and shaking after the offense. As the State suggests, the jury could have reasonably believed that the complainant's lack of immediate reaction resulted from shock at being savagely assaulted. Regarding the evidentiary sufficiency of the deadly weapon finding, the complainant's testimony established that appellant used his hand to choke her almost to the point of unconsciousness. The complainant saw "black" and thought she was going to die. After the assault, the complainant's neck was sore. The complainant demonstrated for the jury how appellant had choked her. Eric Rathjen, a Dallas police detective who handles sexual assault cases, testified that appellant used his hand as a deadly weapon when he choked the complainant. Appellant offered no evidence to support his theory that there should be bruising on the complainant's neck. We conclude the evidence was legally and factually sufficient to support the jury's finding of use of a deadly weapon. See Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004) (concluding evidence was legally sufficient to support finding that defendant used his hands as deadly weapons when he punched victim causing concussion, unconsciousness, bruising, nausea, vomiting, dizziness, and pain); Vela v. State, 159 S.W.3d 172, 183 (Tex.App.-Corpus Christi 2004, pet. granted) (upholding deadly weapon finding where defendant used his hands to choke the victim until she started blacking out, could not breathe, and thought she might die). Having applied the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's verdict and the deadly weapon finding. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484. Therefore, we overrule appellant's first four issues. In his fifth and sixth issues, appellant contends the trial court's jury charge during the punishment phase of trial omitted mandatory instructions regarding the effect of parole and the burden of proof for evidence of an extraneous offense. See Tex. Code Crim. Proc. Ann. art. 37.07, §§ 3(a), 4(a) (Vernon Supp. 2005); Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002); Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Appellee concedes, and the record reflects, that he did not object to the charge errors. Because appellant did not object in the trial court to the charge errors, we review the entire record to determine whether the errors were so egregious and created such harm that appellant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g); Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). Egregious harm consists of those errors that affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Batiste, 73 S.W.3d at 407. We assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id. Although appellant asserts he suffered egregious harm, he does not explain how the trial court's errors harmed him. The State concedes the trial court erred in omitting the instructions, but it contends the errors are not reversible because appellant did not suffer egregious harm. We agree with the State. Regarding the omitted parole instruction, the purpose of the article 37.07, section 4(a) instruction is to ensure the jury's understanding of the interaction of good conduct time with credit for time served in the expectation that the jury will deliver a longer sentence. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). Although the trial court did not include in the charge the statutorily-mandated instruction, it did insert the following parole instruction into the charge: You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles of the State of Texas and are no concern of yours. Similarly-worded instructions have been interpreted as curative instructions that would discourage the jury from giving a harsher sentence. See Grigsby, 833 S.W.2d at 577; see also Roberts v. State, 849 S.W.2d 407, 410 (Tex.App.-Fort Worth 1993, pet. ref'd). In Roberts, the trial court failed to include the parole instruction, but did include an instruction worded substantially similar to the present instruction not to consider the defendant's parole eligibility. As in the present case, the defendant did not object to the missing instruction. In rejecting the defendant's contention of egregious harm, the appellate court acknowledged the difficulty of finding harm for failing to give an instruction meant to increase the defendant's sentence. See Roberts, 849 S.W.2d at 410. Because the evidence supported the punishment assessed and the defendant could not show any actual harm from the charge error, the appellate court concluded that he had not shown any egregious harm. Id. In Grigsby, the trial court refused the defendant's request for the mandatory parole instruction, but did include an instruction not to consider parole. See Grigsby, 833 S.W.2d at 575-76. Because the defendant had objected to the omission of the article 37.07, section 4(a) instruction, he needed to show only some harm to obtain a reversal of his conviction. See id. at 576. Nevertheless, the appellate court concluded the defendant had not shown actual harm because the omitted instruction was harmful to him, the given instruction was helpful to him, he received a minimal sentence, and the evidence supported the punishment imposed. See id. at 577. As in Roberts and Grigsby, there is no evidence in our record of harm-much less egregious harm. An instruction discouraging the jury from increasing appellant's punishment was substituted for an instruction intended to increase his sentence. Appellant did, in fact, receive a sentence at the low end of the available two-to-twenty-year punishment range. See Tex. Pen. Code Ann. §§ 12.33, 15.01(d), 22.021(e) (Vernon 2003 Supp. 2005). The jury's assessment of a sentence toward the lower end of the available punishment range suggests the error was harmless. See Bolden v. State, 73 S.W.3d 428, 434 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Additionally, the evidence before the jury, showing appellant attempted to sexually assault and strangle the complainant, amply supports the punishment assessed. See Grigsby, 833 S.W.2d at 575-76; Roberts, 849 S.W.2d at 410. Although there was substantial argument about the possibility of probation, the prosecutor did not mention parole in final argument. Nothing in the record suggests the jury was concerned about appellant's parole prospects. In the absence of any evidence, we decline to speculate on any harmful effects of omitting the mandatory instruction from the jury charge. See Myres v. State, 866 S.W.2d 673, 674 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Regarding the omitted extraneous offense instruction, the record shows Immigration and Customs Enforcement Agent David Engle testified that appellant was an illegal alien and that if the jury chose to probate his punishment, he would be deported immediately to Mexico. During cross-examination, appellant questioned Engle about his investigation of appellant's past. Engle testified that his investigation showed no prior criminal convictions under appellant's name, but that appellant had been previously apprehended under the name "Juan Antonio Hernandez Diaz Macias." On redirect examination, Engle testified that "Macias" had been deported to Mexico after being convicted of illegal entry into the United States. During a second round of cross-examination, Engle admitted that he could not produce fingerprints to definitively prove that appellant was Macias, but that he believed appellant was the individual deported. During final argument, the prosecutor mentioned, but did not dwell upon, appellant's alleged prior deportation and federal criminal conviction. Instead, the prosecutor argued appellant should be imprisoned rather than receive probation because of the facts of the current offense and because he could not be monitored on probation while in Mexico. Appellant's counsel argued that Engle was not credible and appellant had no prior convictions. When viewed in the totality of the punishment phase hearing, the record does not suggest that the absence of an instruction on extraneous offense evidence made the case for punishment clearly and significantly more persuasive. The jury charge instructed the jury that it could "take into consideration all the facts shown by the evidence" and that the jury was the "exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony. . . ." Thus, the jury was aware that it could reject the State's extraneous offense evidence if it concluded that the proof was unsatisfactory, and appellant urged it to do so. Furthermore, appellant first raised the issue of his identity as "Macias" before the jury. Even after the extraneous offense evidence was introduced, the State's punishment argument emphasized appellant's current, violent offense and the consequences of his deportation status rather than the non-violent extraneous offense of illegal entry into the United States. The impact of the alleged extraneous offense evidence was further attenuated by undisputed evidence that appellant was currently an illegal alien. As we have already discussed, the jury chose to assess punishment near the bottom of the range. We detect nothing in the record that would suggest appellant was egregiously harmed. See Batiste, 73 S.W.3d at 407. We conclude appellant has not shown egregious harm from the omission of either the parole instruction or the extraneous offense instruction. Therefore, we overrule appellant's fifth and sixth issues. We affirm the trial court's judgment.