Opinion
Nos. 05-08-01141-CR, 05-08-01142-CR
Opinion filed July 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 056215-336 and 056592-336.
Before Justices FITZGERALD, LANG, and FILLMORE. Opinion By Justice FILLMORE.
OPINION
Jason Edward Whitten (appellant) was convicted of aggravated sexual assault and aggravated kidnapping, and sentenced to concurrent terms of life imprisonment. On appeal, appellant raises two issues. First, he argues the evidence is legally insufficient to support his convictions. Second, he argues the evidence is factually insufficient to support his convictions. We affirm the trial court's judgments.
05-08-01141-CR.
05-08-01142-CR.
Factual Background
The complainant in these cases graduated from Austin College in Sherman, Texas three days prior to the events described below. For about a year, she had lived in a red brick house on Fischer Street in Sherman along with two college roommates. The complainant and her roommates had been members of the Austin College women's soccer team. The complainant testified that on the night of May 17, 2007, she went to bed at about 10:00 p.m. She was alone in the house that night because her roommates, both of whom were from San Antonio, had "left earlier that day to drive home." Because all three of the occupants were preparing to move out of the house, many of their possessions were packed in boxes. At some point during the night, the complainant testified that she was awakened from a "dead sleep" when the door to her room was "banged open." Startled, she "yelled 'hey'" at the person she saw standing in her room, who she initially believed to be one of her roommates. Upon realizing that this person, "a guy," was not one of her roommates, she turned around and reached for the telephone. As the complainant reached for the telephone, the man, later identified as Douglas Wise, grabbed her from behind and put his arm around her neck. The complainant recalled that "he choked me when he was taking me from my bed." As she yelled "No, please stop," Wise dragged her out of bed and into the dark hallway just outside her room. In the hallway, Wise forced the complainant on to her hands and knees and pulled off her clothes. He told her, "Don't struggle, don't do anything." Wise penetrated the complainant's vagina with his finger and then penetrated her anus and vagina with his penis. The penetration lasted "[a] couple of minutes." He told her that if she struggled she "would be hurt." The complainant believed Wise used a condom because she could hear him opening what sounded like a condom wrapper. She remembered that she "was really scared" and afraid for her life. When Wise was finished, the complainant curled up into a "little ball." A second man, who was later identified as appellant, then approached the complainant from behind and used his hand to lift her up and position her "[o]n all fours." He put his finger in her vagina and, a moment later, flipped her over and covered her face with a towel. The complainant testified, in part, as follows:Q. [PROSECUTOR]: The fact that the second guy pulled you over, flipped you over, that action the second guy took, did that threaten you?
A. [COMPLAINANT]: Yes.
Q. How did that threaten you?
A. Because he was forcing me to do something I didn't want to.
Q. The fact that the second guy covered your face with a towel, did that threaten you?
A. Yes.
Q. How did that threaten you?
A. Because I wasn't allowed to know who was attacking me. It was like I was less than human.
Q. Did you know what he was doing when your face was covered with a towel? Could you know what he was doing?
A. No.Appellant penetrated the complainant's vagina with his penis. After a couple of minutes, he ejaculated on her stomach and one of the men wiped it away with what the complainant thought was a towel. DNA tests on a semen stain found on the complainant's underwear showed appellant was the source of the stain. The complainant moved up against the wall. The men told her to keep the towel over her head and a third man, later identified as Bryan Shipman, made the complainant stand up and get dressed. Shipman tied her hands and feet together using an electrical cord and electrical tape. As she was being tied up, one of the men told her that she "was lucky that they weren't beating [her] because they had done it to other people before." The complainant testified that she was in fear for her life and did not know whether she "would ever see [her] friends or [her] family again." She said that she feared death or serious bodily injury would be imminently inflicted on her "[b]ecause they threatened me and forced me to do whatever they asked." She also said that "[t]hey discussed a gun." She never saw a gun but she suspected the men were armed because Shipman had asked her if she had seen "the first guy's piece." The complainant asked him "what a piece was and he said it was gun." After her hands and feet were bound, the complainant heard the three men talking about what to do with her. After approximately five to ten minutes, one of them asked her if she was uncomfortable. When she said that she was, they untied her and moved her to a closet in the master bedroom. While she was in the closet, the complainant could hear the men "moving things around." She remained in that closet for what "felt like a long time." She recalled that she could smell cigarette smoke on the men's clothing. Although she could not clearly see the men's faces, she remembered the second man wore a red shirt. Wise and appellant eventually left the house. Shipman then pulled the complainant out of the closet and took her to the bathroom, where he made her perform oral sex on him. He told her that if she resisted, she would "regret it." The complainant was in the bathroom with Shipman for what seemed like "[a] really long time," perhaps "an hour or so." During this time, Shipman told the complainant that he had attended Sherman High School and "had just gotten out of . . . Juvenile Hall." He also asked her "how old [she] was, how many men [she] had slept with," and "what [her] major was in school." The complainant asked Shipman if the men were responsible for a burglary that had occurred at the house during the previous summer, when the complainant's house "had been broken into," some clothing and personal possessions were stolen, and paint was poured "all over our couches and all over our house." Shipman told her that Wise had been "involved" in the previous burglary. She also testified that she did not scream or call for help when she was assaulted because she was alone in the house and there were "no neighbors that would have heard [her]." She did not attempt to flee because, based on Shipman's comments, she knew the men "had a gun and [she] was uncertain if they had any other weapons," and she did not know "where the other two men were." At some point, Shipman put his arm around the complainant's neck and dragged her out of the bathroom and into the living room. He sat on the couch and made the complainant "get on the floor," where she was forced to perform oral sex on Shipman. The complainant said she did this off-and-on for what seemed "like a couple of hours" before Shipman ejaculated on the carpet next to the couch. He then took her to the bathroom and made her remove her clothing and get into the shower. After taking a shower, the complainant got dressed. Shipman then dragged her back to the closet. While she was in the closet, the other two men returned. In addition to Wise and appellant, whose voices she recognized, the complainant also heard a woman's voice. The complainant heard the woman walk into the house and say, "You have her in the closet." Then she asked, "Did y'all rape her?" From the tone of the conversation, it appeared they knew one another. After a few seconds this individual, later identified as Cynthia Mathis, walked over to the closet door and asked the complainant if she had been raped. The complainant replied, "Yes." The complainant remembered that Mathis's voice "was real scratchy" and that "she was older and sounded like she had been smoking her whole life." Mathis told the complainant "that she may have to leave for a little while, but that she would help [her] and she would come back before the day was out and get [her] out of the closet." Mathis also said that "it's better to help these people rather than go to the police." She left the house, followed by Wise and appellant, and did not return. After Wise and appellant again left the house, Shipman removed the complainant from the closet and took her to the living room, where she was again forced to perform oral sex on him. Shipman told the complainant "not to try anything" or she "would regret it." The complainant took this to mean that she "would die" or "[h]e'd kill me" if she "tried to get away" or "didn't do what he said." She did not know what time this occurred but remembered "[i]t was still dark outside." At one point, Shipman also ordered the complainant to sit next to him on the couch. He put his arm around her and turned on the television, changing the channel to MTV. Referring to a music video that was playing, "he said something about that being gay was wrong." When the complainant tried to respond, Shipman tapped her on the head and told her, "Don't talk back to me." Later, when the cable television signal was lost, he ordered her to "fix" the cable. When she could not do so, she was again compelled to perform oral sex on him. When Wise and appellant returned, the complainant was ordered to lie on the floor with her head down. A towel was put over her head. Shipman then took her back to the closet, telling her "not to look around [and] just to look straight ahead because the other two guys were there." Waiting until she suspected the men were gone, the complainant testified that she forced her way out of the closet, which had been barred by an empty bookcase. She discovered that the house had been ransacked and numerous items of her personal property were missing, including her stereo, laptop computer, passport, checks, and driver's license. She eventually found her car keys and went outside to her car. When she got inside her car, she could tell other people had been in it because she could smell cigarette smoke and her CD player was missing. She drove to the office of her therapist, with whom she had an 11:00 a.m. appointment, then contacted the police. The complainant was interviewed by investigators from the Sherman Police Department and taken to a Plano hospital for a sexual assault examination. After gathering evidence at the crime scene, interviewing the complainant, and showing her a photographic lineup, police soon identified Wise and Shipman as suspects. Within two days of the break-in, both of them were in custody. Shipman pleaded guilty to aggravated sexual assault and aggravated kidnapping, and agreed to testify against appellant in exchange for a recommended sentence of thirty-five years in prison. According to his testimony, Shipman, Wise, and appellant planned the robbery at Wise's parents' house — which was across the street from the complainant's home — at approximately nine or ten o'clock on the evening of the break-in. They "were running out of dope" and "needed some money." Wise told them about a nearby home he had burglarized before. Shipman said they did not expect to find anyone at the house and there was no discussion of any people who might be living there. Shipman estimated they went across the street to the complainant's house at approximately eleven o'clock. He was carrying a nine millimeter automatic pistol tucked in his waistband. The house was dark. Wise used a brick to break one of the windows out of the front door. Once inside the house, appellant and Shipman became separated from Wise. Believing Wise had left the house, appellant and Shipman went outside to look for him, scanning the streets and "looking around a little bit." When they stepped inside the house, Shipman saw the complainant on her hands and knees "getting raped" by Wise. After watching this for a few seconds, Shipman and appellant "started going through the house looking for stuff." About thirty to forty-five minutes later, Shipman looked around and saw Wise "gathering up property" but did not see appellant. Shipman testified that he searched the house and eventually found appellant "raping" the complainant, who was now lying on her back. Appellant did not say anything to Shipman, who continued removing property from the home. Wise and appellant used the complainant's car to haul the property away, making three "trips to get everything out of the house." While alone in the house with the complainant, Shipman demanded oral sex. Shipman denied threatening the complainant and insisted he never told her about the gun. He also testified that appellant left the house before Cynthia Mathis arrived. According to Shipman, appellant said they "had been there . . . too long." Mathis was called as a witness for the State and testified that she and Wise had known each other for two-and-a-half to three years. She was acquainted with Shipman and appellant but they were not friends. On the night of the break-in, Mathis saw Shipman and Wise at the home of Shannon Askew, a mutual friend. Mathis left the Askew residence sometime between midnight and 1:00 a.m. The following day, she returned to the Askew house and claimed that she saw Wise and appellant there at "between 9 and 10 in the morning," but she did not see Shipman. Mathis asked Wise to take her to the store to buy a pack of cigarettes. Wise told her "he had to get the car." Waiting in front of the Askew residence, she saw Wise pull up in "a gold colored car." When she asked him where the car came from, he told her the car was stolen and "that they were about to take it to Dallas and sell it." Wise also said they "had to stop by a house where his friend was before we could go to the store." He added that "there was a girl tied up in a closet." Arriving at the complainant's house, Wise left Mathis alone in the car while he "went in the back door." A few moments later, Mathis entered the back door, which had been left unlocked, and yelled, "Can you hear me? Can you hear me? Where are you?" She heard a woman's voice coming from a closet, saying, "I'm in here." Mathis's testimony then reads as follows:
I went to where I heard the voice coming from and there was a dresser in front of the closet. And I asked her, "Are you okay?" And she said, "I'm okay." I said, "Have they hurt you?" She said, "Yes, they've raped me twice."
And I told her, I said, "I don't know if I can get you out right now. Will you be okay? I promise I will come back to get you. I will not leave you here." But I promised her that I would get her out somehow. And she said that there was a lock on the door, that she could lock it from the inside, and I told her, I said, "If you have any faith at all, stand on that faith, I won't let you stay there."
And then Douglas Wise and Bryan Shipman came running in there, asked me what I was doing, and I asked Douglas to just get me out of there. I was very scared. I could not even believe what was going on. And I went back to Shannon's house. He took me back to Shannon's house.Mathis admitted that she participated in removing property from the complainant's home. She estimated that was she there for "[n]o more than five minutes," "if even that long." When she and Wise returned to the Askew house, appellant was waiting for them. Mathis asked him "what he had done." Appellant, who was wearing a red shirt, replied, "I didn't touch the b — h. I haven't done anything to her." Mathis also heard appellant ask Wise, "Is she still where we left her?" In addition, Terrelton Braxton, a friend of appellant's, testified that, on May 18, 2007, appellant told him that he "and his buddies . . . had robbed some lady's house and that he had had sex with her." Another State's witness, Freddie Price, testified that he shared a cell with appellant at the county jail for several months after appellant was arrested on the instant charges. According to Price, appellant told him that, as he watched Wise sexually assaulting the complainant, appellant said several times, "[T]his is wrong." Questioning appellant's desire to "have sex" with the complainant, Wise then asked him, "Do you want to hit this?" Feeling sexually aroused, appellant went to the bathroom and tried to masturbate. Then, appellant "thought why masturbate when the real thing was there." After being given a condom, appellant told Price he tried to use it but could not maintain an erection, so he removed the condom and turned the complainant over before sexually assaulting her. Regarding physical injuries suffered by the complainant, Officer Bryan Nichols, the Sherman police officer that observed the complainant soon after the assault, saw a small bruise on her left forearm. Catherine Strain, a Sexual Assault Nurse Examiner, found bruising on both arms, both legs, and "point tenderness" on the right arm below the elbow. She found no other injuries. The only witness called by the defense during the guilt-innocence phase of the trial was Wise, who invoked his Fifth Amendment right not to testify. Appellant also elected not to testify.
Discussion
Legal Sufficiency Appellant first complains that the evidence is legally insufficient to support the convictions. Specifically, he argues the evidence does not support the "aggravated portion" of the aggravated sexual assault charge. He also claims the evidence does not support the aggravated kidnapping charge because he ceased "participation in the criminal episode by leaving the scene of the offense prior to the decision to leave the complainant where she was unlikely to be found." Standard of Review 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Law As explained in the trial court's charge, a person commits sexual assault if the person: (1) intentionally or knowingly, (2) causes the penetration of the anus or sexual organ of another by any means, without that person's consent. Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon 2003). The offense is elevated to aggravated sexual assault if the offender, by acts or words, places the complainant in fear that death, serious bodily injury, or kidnapping will be imminently inflicted. Id. § 22.021(a)(2)(A)(ii). In the present case, the aggravating element that the State alleged was that, in the commission of the sexual assault, appellant by his acts or words placed the complainant in fear that death or serious bodily injury would be imminently inflicted on her. In determining whether the State established the aggravating element of the offense, the jury assesses whether the complainant was fearful, whether the defendant's conduct caused that fear, and whether the complainant's fear was a reasonable result of the defendant's conduct. Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex.App.-Dallas 1991), aff'd, 843 S.W.2d 521 (Tex.Crim.App. 1992); Douglas v. State, 740 S.W.2d 890, 891 (Tex.App.-El Paso 1987, no pet.); see also Kemp v. State, 744 S.W.2d 243, 245 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). The first element, whether the complainant was in fact fearful, is usually established by the complainant's testimony. Douglas, 740 S.W.2d at 891. In examining the second and third elements, the jury may consider the defendant's objective conduct, i.e., acts, words, or deeds, and infer from the totality of the circumstances whether his overall conduct was the producing cause of the complainant's fear and whether the subjective state of fear was reasonable in light of such conduct. Brown v. State, 960 S.W.2d 265, 268 (Tex.App.-Corpus Christi 1997, no pet.); Kemp, 744 S.W.2d at 245. It is not necessary to show the threat of serious bodily injury or death was communicated verbally. Mata v. State, 952 S.W.2d 30, 32 (Tex.App.-San Antonio 1997, no pet.); Kemp, 744 S.W.2d at 245. Nor is it necessary to show that the defendant could have inflicted serious bodily injury. Grunsfeld, 813 S.W.2d at 162; see also Lewis v. State, 984 S.W.2d 732, 734 (Tex.App.-Fort Worth 1998, pet. ref'd); Mata, 952 S.W.2d at 32. Furthermore, the complainant need not articulate the exact words, "I am afraid." Selvog v. State, 895 S.W.2d 879, 882 (Tex.App.-Texarkana 1995, pet. ref'd). Where the objective facts of the assault would naturally cause the complainant to fear for her life or serious bodily injury, as where a deadly weapon, explicit threats, or excessive force or violence are used, it is reasonable to assume the complainant had the requisite level of fear in the absence of some specific evidence to the contrary. Brown, 960 S.W.2d at 268. According to the court's charge, a person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to facilitate the commission of a felony, i.e., burglary of a habitation or aggravated sexual assault, or the flight after the attempt or commission of a felony. Tex. Penal Code Ann. § 20.04(a)(3) (Vernon 2003). "Abduct" means to restrain a person with the intent to prevent her liberation by either (1) secreting or holding her in place where she is not likely to be found, or (2) using or threatening to use deadly force. Id. § 20.01(2). The court of criminal appeals has explained that the term "abduct" includes two elements:First, the defendant must have restrained another, which is the actus reus requirement. Second, the defendant must have had the specific intent to prevent liberation, which is the mens rea requirement. Secreting or holding another where he or she is unlikely to be found is part of the mens rea requirement of the offense-not the actus reus. This is an important distinction because the State is not required to prove that the defendant actually secreted or held another. Instead the State must prove that the defendant restrained another with the specific intent to prevent liberation by secreting or holding the person. 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 unlikely to be found.Laster v. State, 275 S.W.3d 512, 521 (Tex.Crim.App. 2009) (citing Brimage v. State, 918 S.W.2d 466, 475-76 (Tex.Crim.App. 1994)). "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. Tex. Penal Code Ann. § 20.01(1) (Vernon 2003). Such restraint is without consent if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A). "The law imposes no minimum requirement for restraint other than that the interference with the person's liberty be substantial." Wilson v. State, 863 S.W.2d 59, 66 (Tex.Crim.App. 1993). When a defendant keeps a person isolated with an intent to prevent the complainant's liberation by anyone who might be capable of helping the complainant, abduction is proven, and "the claim that the person was not held in a place where the person was not likely to be found is of no importance." See id. The record also reflects that the jury was instructed on the law of parties under Texas Penal Code § 7.02(a)(2) and (b). Under § 7.02(a)(2), a person is criminally responsible for the conduct of another if, "acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2). Under § 7.02(b), a person is criminally responsible
[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.Id. § 7.02(b). Evidence is sufficient to convict under the law of parties where the accused is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). In determining whether an accused participated as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the accused that show an understanding and common design to commit the offense. Id. Though mere presence does not automatically make one a party to a crime, it is a circumstance tending to prove party status and, when considered with other facts, may be sufficient to prove that the defendant was a participant. Davis v. State, 195 S.W.3d 311, 320 (Tex.App.-Houston [14th Dist.] 2006, no pet.). The jury may rely on circumstantial evidence and may infer intent from appellant's acts, words, or conduct. See Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App. 2006); Ransom, 920 S.W.2d at 302. Aggravated Sexual Assault The evidence in this case shows that appellant, Shipman, and Wise broke into the complainant's home. It also shows that Wise entered her bedroom, grabbed her from behind, choked her, dragged her into a dark hallway just outside her room, pulled off her clothes, and sexually assaulted her. He told the complainant that she "would be hurt" if she resisted. A few moments later, appellant covered her face with a towel and sexually assaulted her. She was tied up, untied, and then shoved into a closet. She was later removed from the closet and forced to perform oral sex on Shipman, who also threatened her. The complainant testified that she feared for her life throughout these assaults and thought death or serious bodily injury would be imminently inflicted on her. She further recalled her assailants discussing a gun. Appellant's actions, considered in light of the dangerous environment he created, were sufficient to place a reasonable person in fear of death or serious bodily harm. We therefore conclude the force and restraint imposed on the complainant by appellant and the totality of the circumstances justified the complainant's subjective apprehension of death or serious bodily injury and satisfied section 22.021(a)(2)(A). Viewing the evidence in the light most favorable to the verdict, we believe a reasonable jury could have found appellant's actions were sufficient to support a conclusion that he committed aggravated sexual assault. Thus, the evidence was legally sufficient to support appellant's conviction for aggravated sexual assault. Aggravated Kidnapping In addition to showing that he forcibly entered the complainant's home in the middle of the night with two other men, the evidence shows that appellant participated in subduing the complainant, that he sexually assaulted her, and that he was present when she was tied up, untied, and then shoved into a closet. Further, the evidence shows appellant assisted Wise in removing property from the complainant's home while she was confined. This indicates much greater involvement than mere presence at the crime scene. The complainant also testified that she was alone in the house and there were no neighbors who would have heard any cries for help. A reasonable jury could conclude that appellant acted with the others in a common design to burglarize the complainant's home and that the complainant was abducted and confined in order to facilitate the burglary and subsequent flight from the premises. A reasonable jury could also conclude appellant was criminally responsible for the kidnapping because he was present at its commission and his actions showed an "intent to promote or assist the commission of the offense" by aiding in its commission. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). When the evidence is viewed in the light most favorable to the verdict, we believe a reasonable jury could have found all of the elements necessary to convict appellant as a party to aggravated kidnapping. Accordingly, the evidence was legally sufficient to support appellant's aggravated kidnapping conviction. We overrule appellant's first issue.