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MEMORANDUM OPINION
No. 04-07-00479-CR
Jose Geraldo CASTANEDA-LERMA,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kimble County, Texas
Trial Court No. 06-1522
Honorable Emil Karl Prohl, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: June 25, 2008
REVERSED AND REMANDED
Jose Geraldo Castaneda-Lerma was convicted by a jury of sexual assault and sentenced to
fifteen years imprisonment. On appeal, Castaneda-Lerma contends the evidence is insufficient to
support his conviction, the jury charge was fatally flawed, and the trial court erroneously admitted
certain evidence. We reverse the trial court’s judgment and remand the cause to the trial court for
a new trial.
04-07-00479-CR
BACKGROUND
Around 4:00 a.m., A.T. was taken to the emergency room at a hospital in Kimble County for
heavy vaginal bleeding. Because the Kimble County hospital did not have the necessary equipment
to fully examine or treat her, A.T. was transported to the hospital in Kerrville. A.T. was transported
by ambulance because her blood loss had caused her blood pressure to drop. A.T was examined at
the Kerrville hospital and underwent a fifty-minute surgical procedure to repair a pulsating arterial
bleed. The laceration required eight stitches to repair. Although A.T. initially told her sister, the
hospital personnel, and the investigating officers that the bleeding was the result of a non-consensual
sexual assault, she recanted at trial and testified that the sexual encounter was consensual.
DISCUSSION
In his first issue, Castaneda-Lerma contends that the jury charge was fatally flawed because
it permitted his conviction on proof different from, and less than, that required to prove the
allegation in the indictment. In reviewing an issue complaining of charge error, we consider two
questions: (1) whether error existed in the charge; and (2) whether harm resulted from the error to
compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If error exists, the
degree of harm necessary for reversal depends on whether the appellant preserved the error by
objection. Id. at 743. When the defendant has properly objected to the charge, reversal is required
if we find “some harm” to the defendant’s rights. Id. When the defendant fails to object, we will
not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Id.
The indictment in this case alleged that Castaneda-Lerma:
intentionally or knowingly sexually assault[ed] [A.T.] by causing his sexual organ
to penetrate the female sexual organ of [A.T.], without [A.T.’s] consent, and the said
JOSE GERALDO CASTANEDA-LERMA knew that as a result of mental disease
and defect [A.T.] was at the time of said sexual assault incapable either of appraising
the nature of the act or of resisting it.
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Therefore, the indictment alleged the sexual assault was without consent based on section
22.011(b)(4) of the Texas Penal Code.1 TEX. PEN. CODE ANN. § 22.011(b)(4) (Vernon Supp. 2007).
The application paragraph of the jury charge permitted the jury to find Castaneda-Lerma
guilty if the jury found that he caused his male sexual organ to penetrate A.T.’s female sexual organ
without A.T.’s consent. Because the application paragraph did not track the language of the
indictment and apply the theory by which Castaneda-Lerma’s actions were “without A.T.’s
consent,” the jury was required to rely on the definitions portion of the jury charge to determine
whether Castaneda-Lerma’s actions were without A.T.’s consent. In the definitions portion of the
jury charge, the jury was charged as follows:
Sexual assault is without the consent of the other person if the actor compels the
other person to submit or participate by the use of physical force or violence; or the
actor knows that as a result of mental disease or defect the other person is at the time
of the sexual assault incapable either of appraising the nature of the act or of resisting
it.
Thus, unlike the indictment which required the State to prove lack of consent based on section
22.011(b)(4), i.e., lack of mental capacity to consent, the jury charge permitted the State to prove
lack of consent under either section 22.011(b)(4) or section 22.011(b)(1), i.e., consent compelled
by physical force or violence. Because the jury charge permitted the jury to convict under a statutory
basis for showing lack of consent that was not alleged in the indictment, error existed in the jury
1
Section 22.011(b) provides, in pertinent part, that a sexual assault “is without the consent of the other person
if:
(1) the actor compels the other person to submit or participate by the use of physical force or
violence; [or]
****
(4) the actor knows that as a result of mental disease or defect the other person is at the time of
the sexual assault incapable either of appraising the nature of the act or of resisting it;”
TEX. PEN. CODE ANN. § 22.011(b) (Vernon Supp. 2007).
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charge. See Jiminez v. State, 727 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d)
(noting indictment must allege specific subsection in section 22.011(b) to authorize conviction).
Castaneda-Lerma expressly objected to the inclusion of section 22.011(b)(1)’s lack of
consent theory in the jury charge as follows:
MR. PICKELL: Defendant would object to the second sentence in paragraph –
paragraph one or the first part of that sentence: “Sexual assault is without the consent
of the other person if the actor compels the other person to submit or participate by
the use of physical force or violence.” We would object to that as that was not
alleged in the indictment.
THE COURT: Court’s going to overrule your objection.
Because Castaneda-Lerma timely objected to the error in the charge, he is only required to show
“some harm” in order to be entitled to a reversal. Ngo, 175 S.W.3d at 744. 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 probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984).
Because the charge included a second statutory basis for establishing lack of consent, the
jury was not required to unanimously find that A.T. was incapable either of appraising the nature
of the act or resisting it as a result of a mental disease or defect. Instead, some of the jurors could
have determined Castaneda-Lerma was guilty based on A.T.’s incapacity to consent while those who
believed A.T. had the mental capacity to consent could have determined Castaneda-Lerma was
guilty because he used physical force or violence to compel A.T. to submit or participate. By
permitting the State to establish guilt under alternative theories, the charge lessened the State’s
burden of proof.
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Although the evidence in regard to A.T.’s capacity to consent was conflicting, the jury was
presented with compelling evidence that force was used during the incident. Dr. Carol Ann Andrus,
who examined A.T. at the Kimble County hospital, stated that A.T. was taken to the emergency
room because she had experienced heavy vaginal bleeding for two hours. Dr. Andrus performed an
external genital exam on A.T. and noted large clots of blood present which indicated some sort of
trauma. Dr. Andrus testified that it would be “fairly unusual in an alleged sexual assault to see
much, if any blood” present. Because the loss of blood caused a drop in A.T.’s blood pressure, she
was transferred to the hospital in Kerrville by EMS. Dr. Andrus further testified that she had
observed other sexual assault victims during the course of her practice, and A.T.’s case “was the
worst case [she] had ever seen.”
Georgette Robbins was a sexual assault nurse examiner for the Kerrville hospital. After
examining A.T., Robbins determined that A.T. would need assistance from a gynecologist because
she had an arterial bleed that was pulsating and would require surgery to repair. Pictures of A.T.’s
laceration were introduced into evidence. The surgical procedure took approximately fifty minutes,
and A.T. required eight stitches to repair the laceration. In comparison to other surgeries, Robbins
testified that A.T.’s injury was very traumatic - “the only time I’ve ever seen this in my career.”
Robbins stated that the injury was caused by the penis entering the vagina, hitting the vaginal wall,
and causing the tear.
Finally, the State emphasized the evidence of force during its closing argument, noting, “The
next witness you heard testimony from was Georgette Robbins, and she described the four
centimeter tear in the vagina that was consistent with forcible sexual assault.” “Georgette also said
this was a very traumatic injury, and this was the most serious she has ever seen in her 20 some odd
years delivering babies and assisting in surgeries in the OB/GYM at Sid Peterson Memorial
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Hospital.” The State then emphasized that the jury could convict under either theory with regard
to lack of consent, arguing:
Even if you think that [A.T.] had the mental capacity to consent, you still
have sexual assault being without the consent of the other person in the first part of
the definition, “if the actor compels the other person to submit or participate by the
use of force or violence.”
You have enough evidence. You have beyond a reasonable doubt of
evidence that [A.T.] didn’t consent to it even if she could legally consent to it. Do
you think that she consented to it?
Her testimony to the nurses and to different nurses was that he got her from
behind and grabbed her and forced herself [sic] on it. You’ve also got testimony in
this transcript as well that Berta [A.T.’s sister] said that [A.T.’s] shoulders were sore
from that force.
That’s what we’re talking about. We’re talking about consent, her legal
capacity to consent; and even if you don’t go that way, you’ve still got that she didn’t
consent.
After defense counsel gave his closing argument, the State again emphasized the two alternative
theories for finding lack of consent as follows:
Now, Mrs. Ahlschwede got into this a little bit, and I want to go into [it] a
little bit deeper. If you believe from the evidence beyond a reasonable doubt that this
poor little girl, this poor little handicapped, poor little retarded girl was physically
and forcibly raped out there by that trash can, you don’t even need to think about
consent or what her mental picture or attitude or capabilities was [sic]. If you think
she was physically raped, consent is not the issue.
It’s only – and that’s the reason we had the testimony because we knew that
Berta and this little girl were going to come in here and try to tell you that, no, it was
by consent. So that’s the reason we’ve been having to fight this consent issue.
But I think the evidence is sufficient right off the bat when you go back there
to the jury room, and whoever the foreman is says, How many of you think this little
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girl was physically sexually assaulted, raise your hand. If you’ve got 12, that’s it.
You don’t even have to think about what her mental picture was.
Therefore, not only did the State emphasize the two possible theories for finding lack of consent,
the State encouraged the jury to convict by finding that Castaneda-Lerma compelled A.T. to submit
by physical force or violence without finding that she did not have the mental capacity to consent.
Given the nature of the charge error, the state of the evidence, and the prosecutor’s emphasis
of the error, we hold Castaneda-Lerma has shown some harm from the error in the jury charge.
Accordingly, we sustain his first issue.
Castaneda-Lerma also asserts several other issues; however, we need only address his
challenge to the legal sufficiency of the evidence as that issue is a rendition issue.2 See TEX. R. APP.
P. 47.1 (opinion should be brief as practicable and only address issues necessary to final
disposition); Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d) (noting
appellate court reversing trial court’s judgment on a dispositive issue need not address other remand
issues). Castaneda-Lerma contends the evidence was legally insufficient to establish that as a result
of a mental disease or defect A.T. was at the time of the sexual assault incapable of appraising the
nature of the act or of resisting it.3 We disagree. When a party attacks the legal sufficiency of the
evidence, we view the evidence in a light most favorable to the verdict and determine whether any
2
Our failure to address these issues is no indication of whether or not the trial court erred in admitting the
challenged evidence; however, we note that this court has overruled issues challenging the admission of a medical history
given to a sexual assault nurse examiner as hearsay on a number of occasions. See, e.g., Ezell v. State, No. 04-06-00198-
CR, 2007 WL 2778919, at *6-7 (Tex. App.—San Antonio Sept. 26, 2007, no pet.) (not designated for publication); Silva
v. State, No. 04-05-00824-CR, 2006 WL 3612818, at *2 (Tex. App.—San Antonio Dec. 13, 2006, no pet.) (not
designated for publication); McDonald v. State, No. 04-05-00128-CR, 2006 WL 2417177, at *2-3 (Tex. App.—San
Antonio Aug. 23, 2006, no pet.) (not designated for publication); Perez v. State, No. 04-05-00212-CR, 2006 WL 542668,
at *2 (Tex. App.—San Antonio Mar. 8, 2006, no pet.) (not designated for publication).
3
We note that this lack of consent theory would have been the only theory included in a hypothetically correct
jury charge which we use in considering the sufficiency of the evidence. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997).
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rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, the jury heard evidence from various
medical personnel describing A.T. as childlike and functioning at the level of a middle school age
child of 12. One of the investigating officers, who had known A.T. for many years, testified that she
is disabled and cannot fully sustain a normal, everyday life. The other investigating officer stated
A.T. seemed a bit slow and appeared to have some mental retardation. A psychiatrist who evaluated
A.T. testified that A.T. could not consent to have sex under the circumstances with which she was
confronted. Furthermore, A.T. testified, and the jury was able to observe her and evaluate her
abilities. Finally, Castaneda-Lerma had known A.T. for at least two years; therefore, the jury could
have inferred that he had observed the same behavior observed by the testifying witnesses and had
knowledge of A.T.’s mental condition. Therefore, the evidence was legally sufficient to establish
that Castaneda-Lerma knew that as a result of a mental disease or defect A.T. was at the time of the
sexual assault incapable of appraising the nature of the act or of resisting it.
CONCLUSION
The trial court’s judgment is reversed, and the cause is remanded to the trial court for a new
trial.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
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