Opinion
Nos. 05-03-00334-CR, 05-03-00335-CR.
Opinion Filed March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th District Court Grayson County, Texas, Trial Court Cause Nos. 49003, 49004. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Jeremy Hayes Mundine of aggravated kidnapping and aggravated sexual assault. In each case, the jury assessed punishment at fifty years' confinement and a fine of $5,000. Mundine appeals. In four points of error, he argues that the evidence is legally and factually insufficient to support his convictions, the trial court erred in admitting hearsay testimony during the penalty phase of both cases, and the trial court erroneously instructed the jury that it could convict him in the aggravated sexual assault case if it found penetration when no evidence of penetration was admitted at trial. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first and second points of error, Mundine asserts the evidence is legally and factually insufficient to support his convictions. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim. App. 1995) (legal sufficiency); see also Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). A person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to "(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony; (4) inflict bodily injury on him or violate or abuse him sexually; [or] (5) terrorize him or a third person." Tex. Pen. Code Ann. § 20.04(a)(3), (4), (5) (Vernon 2003). A person also commits aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Id. § 20.04(b). A person commits aggravated sexual assault if he intentionally or knowingly causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person, or uses or exhibits a deadly weapon in the course of the same criminal episode. Id. §§ 22.021(a)(1)(A)(iii), (a)(2)(A)(iii), (a)(2)(A)(iv). There is evidence in the record that Mundine arrived at the residence of a former co-worker smelling of alcohol. Several people were at the residence. Mundine became violent and threatened the people with a gun. He hit Jessica Carter on the head with the gun. He also hit other people at the residence with the gun, made them get on their knees on the floor, and took money from them. He also took money from Carter. He pointed the gun toward one person and pulled the trigger two times. Mundine then forced Carter to get into a car with him. He pointed the gun at her and told her she was going with him and they were going to have sex. Mundine drove Carter to a secluded park, parked the car, and requested her to perform oral sex on him. When she did not comply, he briefly handed her the gun, then grabbed the gun from her and hit her with it. He had her remove her clothing except for her shirt. Carter engaged in oral sex with Mundine, but he did not have an erection. Mundine made Carter get on top of him and his sexual organ touched her sexual organ. Mundine eventually passed out, and Carter escaped. After considering the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of aggravated kidnapping and aggravated sexual assault beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Therefore, we conclude the evidence is legally sufficient to support the convictions. Mundine does not cite to any specific evidence as the most important and relevant to his assertion that the evidence is factually insufficient to support his convictions. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). He argues the convictions are clearly wrong and unjust because there was simply not enough evidence to show that Carter was the victim of sexual assault or aggravated kidnapping. Viewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the rest of the evidence. See Sims, 99 S.W.3d at 603. We conclude the evidence is factually sufficient to support the convictions. We overrule Mundine's first and second points of error. In his third point of error in the aggravated sexual assault case, Mundine argues the trial court, over his objection, erroneously included the word "penetrate" in the application paragraphs of the jury charge because there was no evidence of penetration of Carter's female sexual organ. The trial court overruled the objection and submitted a charge asking the jury to find whether Mundine did "intentionally or knowingly contact or penetrate the female sexual organ of Jessica Carter by defendant's male sexual organ" or did "intentionally or knowingly contact or penetrate Jessica Carter's mouth by the defendant's male sexual organ." Alternate manner and means of committing a single offense may be charged in the same indictment. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Even if the indictment alleges different means of committing the offense in the conjunctive, it is still proper to charge the jury on those alternatives in the disjunctive. See id. Where alternative theories of committing the same offense are submitted to the jury disjunctively, it is proper for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. See Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999); Kitchens, 823 S.W.2d at 258. The State was not required to prove penetration. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(iii). Because the evidence is legally and factually sufficient to support the "contact" theory, any error in submitting the "penetration" theory in the disjunctive is not harmful. See Kitchens, 823 S.W.2d at 258. We overrule Mundine's third point of error in cause number 05-03-00335-CR. In his fourth point of error in the aggravated sexual assault case and his third point of error in the aggravated kidnapping case, Mundine argues he was denied his right to confront and cross-examine witnesses when, during the punishment phase of the cases, the trial court allowed a police officer to testify, over objection, to oral statements made by Mundine's wife to the officer. The State called a police officer to testify about his investigation of a family violence call made by Mundine's wife approximately one year before the offenses for which Mundine was on trial. After the trial court overruled Mundine's objection, the officer testified that Mundine's wife said Mundine had thrown her down on the pavement, got on top of her, and was about to hit her when she scratched his face to get him away from her. The trial court instructed the jury that it could not consider the evidence on the basis of its truth, but could only consider it for the fact that the officer may have relied on the information during the course of his investigation. The jury charge in the punishment phase instructed the jury that it could not consider evidence of extraneous offenses unless it found beyond a reasonable doubt that Mundine committed the offenses. In non-capital felony cases, the State may present evidence as to any matter the trial court, in the legitimate use of its discretion, deems relevant to sentencing, including evidence of other crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004); Tracy v. State, 14 S.W.3d 820, 825 (Tex. App.-Dallas 2000, pet. ref'd). At the punishment hearing, relevant evidence is that which assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). Admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause of the Sixth Amendment of the United States Constitution because the defendant is not afforded the opportunity to confront the out-of-court declarant. Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App. 1999). Assuming without deciding that the trial court erred in admitting the statements about what Mundine's wife told the officer, we conclude the error, if any, did not contribute to Mundine's punishment. See Simpson v. State, 119 S.W.3d 262, 269 (Tex.Crim.App. 2003) ("But we need not decide the issue of the statements' admissibility under the Confrontation Clause because any error in the admission of the statements did not contribute to the appellant's conviction."), petition for cert. filed, available at http://www.supremecourtus.gov/docket/03-9167.htm (U.S. Feb. 23, 2004). Under the constitutional harm analysis of rule 44.2(a), we must reverse a judgment of conviction or punishment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). We consider the entire record in a neutral light and determine "if there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question." Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim. App. 2000); see also Harris v. State, 790 S.W.2d 568, 586 (Tex.Crim. App. 1989); Montgomery v. State, 821 S.W.2d 314, 317 (Tex. App.-Dallas 1991), pet. ref'd, 827 S.W.2d 324 (Tex.Crim. App. 1992) (en banc). Other than the statement about the assault on Mundine's wife, the State in its punishment case relied on the evidence of the other offenses committed on the night of Carter's kidnapping and sexual assault, enhancement paragraphs in the indictments for three convictions for possession of a controlled substance, and convictions for aggravated assault of a peace officer and aggravated assault with a deadly weapon, and evidence of other bad acts committed by Mundine. Mundine pled true to the enhancement paragraphs. The State briefly mentioned the assault in closing argument, but did not emphasize the evidence. After reviewing the entire record, we conclude beyond a reasonable doubt that the error, if any, did not contribute to the punishment. See Tex.R.App.P. 44.2(a). Having concluded the error is harmless under rule 44.2(a), a more stringent standard, we need not conduct a separate harm analysis under rule 44.2(b). See Guidry, 9 S.W.3d at 151 n. 14. We overrule Mundine's third point of error in cause number 05-03-00334-CR and his fourth point of error in cause number 05-03-00335-CR. We affirm the trial court's judgments.