NO. 12-04-00320-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DERRICK C. WALKER, § APPEAL FROM THE 123RD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
Derrick C. Walker appeals his conviction of aggravated sexual assault, for which he was sentenced to imprisonment for thirty years. Appellant raises two issues on appeal. We affirm.
Background
Appellant was indicted for aggravated sexual assault. The indictment alleged that Appellant intentionally or knowingly caused the penetration of the female sexual organ of S.W. by Appellant’s sexual organ, without the consent of S.W., and that Appellant by acts or words threatened to cause, or place S.W. in fear that death would be imminently inflicted on her. Appellant pleaded “not guilty,” and the matter proceeded to jury trial.
At trial, S.W. testified that on January 1, 1999, she was home alone locked in her bedroom where she was watching television, eating popcorn, and drinking tea. When S.W. left her bedroom to go to the kitchen, Appellant, who was waiting on the other side of the door, grabbed her arms and restrained her. Appellant told her not to look at him and asked her where her purse was located. Appellant located some money in S.W.’s purse, then asked S.W. about the identities of the people in the pictures Appellant had in her billfold. When S.W. identified the people as her granddaughter and grandson. Appellant stated, “If you tell—if you tell anybody about this, I’ll kill them. I’ll kill your grandkids and I’ll kill your son and I’ll kill your daughter-in-law and I’ll kill you.”
S.W. testified that Appellant then tore off her pajamas and removed his blue jeans and shoes. S.W. further stated that Appellant forced her to lie on the bed while he sexually assaulted her for nearly an hour. S.W. further testified that Appellant could not maintain an erection and forced her to perform oral sex on him, after which he again sexually assaulted her. S.W. stated that Appellant repeatedly told her, “Don’t look at me. You keep your eyes closed.” Thereafter, Appellant went into the bathroom all the time telling Appellant that he would kill her grandchildren if she said anything to anyone about what had happened.
Appellant departed S.W.’s home in her pickup truck, but quickly returned and remained in the house for an additional thirty minutes. After waiting for approximately two hours, S.W. left her house and crawled through a pasture approximately 300 yards to her daughter in law’s house. S.W. stated that she was afraid Appellant would kill her if he saw her leave the house. S.W.’s daughter in law subsequently took S.W. to the emergency room.
Ultimately, the jury convicted Appellant of aggravated sexual assault and assessed punishment at imprisonment for thirty years. The trial court sentenced Appellant accordingly, and this appeal followed.1
Legal Sufficiency of the Evidence
In his first issue, Appellant contends that the evidence is legally insufficient to support the jury’s finding of guilt. Specifically, Appellant argues that there was no evidence that he caused S.W. to fear that her death was imminent.
Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); 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 jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
To support a conviction for aggravated sexual assault as authorized by the indictment in this case, the State was required to prove, among other things, that Appellant, by acts or words occurring in S.W.’s presence, either (1) threatened to cause S.W.’s death or (2) placed her in fear that death would be imminently inflicted upon her. See Tex. Pen. Code Ann. § 22.021(a)(2)(A)(ii), (iii) (Vernon Supp. 2005).
In the case at hand, Appellant argues that any evidence that he threatened S.W.’s life was conditional and involved only threats of future harm. Yet, under the hypothetically correct charge, the State can prove its case for aggravated sexual assault by demonstrating that Appellant, by acts or words occurring in the presence of the victim, threatened to cause her death. See Tex. Pen. Code Ann. § 22.021(a)(2)(A)(iii). Thus, unlike Section 22.021(a)(2)(A)(ii), proof of imminence is not required where there is an express threat to cause death. See Tex. Pen. Code Ann. § 22.021(a)(2)(A)(iii); Ainsworth v. State, No. 01-93-00038-CR, 1994 WL 562061, at *2 (Tex. App.–Houston [1st Dist.] October 13, 1994, pet. ref’d) (not designated for publication) (“[S]ection 22.021 does not require proof in every aggravated sexual assault case that the defendant threatened the 'imminent' infliction of [death]. Subsection (a)(2)(A) lists four alternatives. . . . The evidence . . . need only be sufficient to support any one of those four alternatives.”). Here, S.W. testified that Appellant, prior to sexually assaulting her, told her that if she told anyone, he would kill S.W., her children, her daughter in law, and her grandchildren. We hold that the evidence is legally sufficient to support the jury’s verdict. Appellant’s first issue is overruled.
Lesser Included Offense
In his second issue, Appellant contends that the trial court erred in refusing his request to instruct the jury on the lesser included offense of sexual assault. The State contends that there was no evidence submitted to the jury that showed if Appellant was guilty, he was guilty only of sexual assault.
An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). A defendant is entitled to an instruction on a lesser included offense if (1) proof of the charged offense includes the proof required to establish the lesser included offense and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
Sexual assault is a lesser included offense of aggravated sexual assault. See Chavis v. State, 807 S.W.2d 375, 377 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d); compare Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2005) with Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2005). Thus, because the first prong is satisfied, we direct our inquiry to the second prong. If the evidence contains a scintilla of evidence to support the second prong, then Appellant is entitled to an instruction on the lesser included offense of sexual assault. See Ferrel, 55 S.W.3d at 589. However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Solomon v. State, 49 S.W.3d 356, 369 (Tex. Crim. App. 2001); Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Rather, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense. See Feldman v. State, 71 S.W.3d 738, 752 n.9 (Tex. Crim. App. 2002). Moreover, where multiple theories on the aggravation element of sexual assault are presented to the jury and a finding on any of the theories would permit the jury to find that the offense was aggravated, the second prong is only satisfied if there is evidence, which, if believed, refutes or negates every theory that elevates the offense from the lesser to the greater offense. Id.; Arevalo v. State, 970 S.W.2d 547, 548–49 (Tex. Crim. App. 1998).
In the case at hand, there is no evidence of record to support that Appellant did not threaten to kill S.W. Moreover, Appellant does not challenge such evidence in his brief, but rather, focuses on evidence concerning the imminence of the threat. Thus, we conclude that the record does not contain any evidence that would indicate that Appellant was only guilty of sexual assault rather than aggravated sexual assault. We hold that the trial court did not err in refusing to instruct the jury concerning the lesser included offense of sexual assault. Appellant’s second issue is overruled.
Disposition
Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.
DIANE DEVASTO
Justice
Opinion delivered April 12, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)
1 On July 2, 2003, Appellant filed an original pro se application for writ of habeas corpus. The court of criminal appeals granted Appellant this out of time appeal.