ACCEPTED
03-14-00228-CR
6231651
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/27/2015 11:45:21 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00228-CR
No. 03-14-00229-CR FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In the 7/27/2015 11:45:21 AM
Court of Appeals JEFFREY D. KYLE
Third District Clerk
Austin, Texas
Troy Williams,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 147th Judicial District Court
Travis County, Texas
Cause Numbers D-1-DC-12-904077 and D-1-DC-12-904080
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Argument............................................................................................. 3
Reply Point One: The trial court did not err in refusing to give a jury
instruction on voluntary release in a safe place................................ 3
Reply Point Two: The prosecutor’s explanation of parole law was
proper. ...............................................................................................7
Reply Point Three: The evidence is legally sufficient to prove
penetration. .....................................................................................13
Prayer .................................................................................................18
Certificate of Compliance and Service ................................................19
i
Index of Authorities
Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ................. 6
Ballard v. State, 193 S.W.3d 916 (Tex. Crim. App. 2006)................... 4
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ..................13
Brown v. State, 98 S.W.3d 180 (Tex. Crim. App. 2003) ..................... 4
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999).............. 2, 13
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ............... 11
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ................. 11
Jackson v. Virginia, 443 U.S. 307 (1979)...........................................13
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 4
Nzewi v. State, 359 S.W.3d 829 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d) ................................................................................ 8
Rynes v. State, 479 S.W.2d 70 (Tex. Crim. App. 1972) ......................14
Steadman v. State, 262 S.W.3d 401 (Tex. App.—Waco 2008, pet.
granted) ........................................................................................... 15
Steadman v. State, 280 S.W.3d 242 (Tex. Crim. App. 2009) ............ 15
Steadman v. State, No 10-07-00105-CR, 2009 Tex. App. LEXIS 9594,
2009 WL 4852156 (Tex. App.—Waco 2009, no pet.)...................... 15
Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007) ................... 9
Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) .................. 15
Waters v. State, 330 S.W.3d 368 (Tex. App.—Fort Worth 2010, pet.
ref’d) ................................................................................................10
West v. State, 406 S.W.3d 748 (Tex. App. Houston [14th Dist] 2013,
pet. ref’d) .......................................................................................4, 5
Statutes
Tex. Code Crim. Proc. art. 37.07......................................................... 11
Tex. Code Crim. Proc. art. 44.29 ........................................................12
Tex. Pen. Code § 20.04........................................................................ 3
Rules
Tex. R. App. P. 44.2 ............................................................................10
ii
No. 03-14-00228-CR
No. 03-14-00229-CR
In the
Court of Appeals
Third District
Austin, Texas
Troy Williams,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 147th Judicial District Court
Travis County, Texas
Cause Numbers D-1-DC-12-904077 and D-1-DC-12-904080
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
Appellant’s briefs.
Summary of the State’s Argument
Reply Point One: The trial court did not err in refusing to give a
jury instruction on voluntary release in a safe place. Appellant was
not entitled to this instruction because he never performed an overt
1
and affirmative act that informed the victim that she was fully
released from captivity. While Appellant may have let the victim flee
while he was trying to steal her car, that does not count as an
affirmative act which brought home to the victim that she had been
fully released from captivity. Thus, the trial court did not err in failing
to give the requested jury instruction.
Reply Point Two: The prosecutor’s comments on parole law were
proper. She merely explained how parole eligibility worked with fifty,
sixty, and life sentences, to help the jury understand the parole
instructions. The explanation did not go beyond an attempt to clarify
the jury instructions. The trial court did not abuse its discretion in
overruling Appellant’s objections to the prosecutor’s comments.
Reply Point Three: The evidence is legally sufficient to prove
penetration. Penetration of the female sexual organ includes any
intrusion beyond the outer labia, or lips. The State does not have to
show that the penis actually entered the vaginal canal. The victim
testified that Appellant’s erect penis was banging, thrusting, and
pounding against her vagina. Additionally, her urethra was red and
irritated, her cervix was red and had a little bit of blood on it, and
2
Appellant’s sperm was found on the victim’s labial swabs. All of this
evidence could lead a reasonable jury to conclude that the contact
between Appellant’s sexual organ and the victim’s sexual organ was
more intrusive than mere contact with her outer vaginal lips, and
therefore, the evidence is legally sufficient to support the jury’s
finding of penetration.
Argument
Reply Point One: The trial court did not err in refusing to
give a jury instruction on voluntary release in a safe place.
Appellant argues that he was entitled to a jury instruction on
voluntary release in a safe place. This instruction tells the jury that if
the defendant proves by a preponderance of the evidence that he
voluntarily released the victim in a safe place, the punishment range
for aggravated kidnapping is lowered to a second degree felony. Tex.
Pen. Code § 20.04(d).
Appellant argues that he was entitled to this instruction because
he set the victim’s car keys on the ground and turned around to leave,
and he later got into the victim’s car and tried to drive away. He
argues that the victim was released at this point because she was free
3
to walk across the street and contact the AISD employee who was in
the school parking lot.
Case law
A defendant is entitled to an instruction on every defensive issue
raised by the evidence, regardless of whether the evidence is strong or
weak. But when the evidence fails to raise a defensive issue, the trial
court commits no error by refusing the requested instruction. Muniz
v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).
In order to raise the issue of voluntary release in a safe place, a
defendant must offer some evidence that he actually released the
victim. West v. State, 406 S.W.3d 748, 766 (Tex. App. Houston [14th
Dist.] 2013, pet. ref’d). The defendant must have performed some
overt and affirmative act that informs the victim that he has been
fully released from captivity. Ballard v. State, 193 S.W.3d 916, 919
(Tex. Crim. App. 2006). Voluntary release does not include rescue or
escape. Brown v. State, 98 S.W.3d 180, 188 (Tex. Crim. App. 2003).
4
Application to the facts
Appellant never performed an overt and affirmative act that
informed the victim that she was fully released from captivity.
To begin, Appellant never let the victim have her car keys. He
briefly set them on the ground, but he immediately picked them back
up when the victim tried to get help at the rec center. Additionally, as
the victim tried to walk away, Appellant yelled at her to come help
him start her car. When the victim grabbed her car keys and ran,
Appellant pursued her, pushed her, and took the car keys back. The
victim ended up running across the street, stopping in front of a
stranger’s car, and asking for help. 3RR 95-97.
As the trial court stated, “at no point was [the victim] quote,
unquote, released.” 6RR 45. While Appellant may have let the victim
escape while he was trying to steal her car, that is not an affirmative
act which brought home to the victim that she had been fully released
from captivity. See West, 406 S.W.3d at 766 (defendant was not
entitled to an instruction on safe release just because he did not
prevent the victim from approaching other people or the police).
5
Thus, the trial court did not err in failing to give the requested jury
instruction.
Harmless error
For there to be reversible error, the record must show that
Appellant suffered some actual (rather than theoretical) harm.
Almanza v. State, 686 S.W.2d 157, 171, 174 (Tex. Crim. App. 1985).
In Appellant’s case, there was no harm because the evidence
clearly showed that the victim was not released, much less released in
a safe place. The victim was stranded in the parking lot of a closed
and locked recreation center; she had just been sexually assaulted;
Appellant repeatedly threatened to kill her; Appellant said he had a
gun; Appellant yelled at her when she tried to get help; Appellant took
her car keys and attempted to steal her car; Appellant assaulted her
again when she tried to grab her car keys and run; and she had to run
out, across a street, and stand in front of a stranger’s car to get help. 3
RR 87-97. At no point did Appellant communicate a desire or intent
to release her, much less do any affirmative act to show her that she
was fully released.
6
In sum, no reasonable juror would have found that Appellant
proved by a preponderance of the evidence that he voluntarily
released the victim in a safe place, and thus, he was not harmed by
the lack of such a jury instruction. For these reasons, Appellant’s first
point of error should be overruled.
Reply Point Two: The prosecutor’s explanation of parole
law was proper.
During closing argument, the prosecutor stated:
So then if you go to Page 6 of the charge, it will tell you it
cannot accurately be predicted how the parole law and
good conduct time that might be applied to this defendant
if he is sentenced to a term of imprisonment because the
application of these laws will depend on decisions made
by prison or parole authorities.
What this charge is telling you is, when you go back there
you can't say, I wonder when he'll be paroled. What you
do know and what the law provides is that he has to serve
at least half of the term before he is eligible for parole.
And, ladies and gentlemen, you cannot consider the
eligibility, if he is actually going to get paroled. Okay?
That is not something that you need to be talking about.
What we do know and as an example, let's say you gave a
50-year sentence, he would be eligible for parole –
Appellant objected, arguing that the prosecutor was improperly
directing the jury to consider parole and to do the parole calculations.
The judge overruled the objection, and the prosecutor told the jury:
7
So what the law provides and what the charge says is that
the defendant will not become eligible until he serves at
least half of whatever sentence is assessed. So, for
example, if it was a 50-year sentence, he would not be
eligible until 25 years. If it's a 60-year sentence, he is not
eligible until 30 years. If it's 60 to life, there's still that
same 30 years. Okay? So he – if you assess a life sentence,
then he is still eligible at 30 years.
6RR 51-53.
On appeal, Appellant argues that it was improper to specifically
apply the parole law and calculations to Appellant.
Standard of review
A trial court's ruling on an objection to improper jury argument is
reviewed for abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).
Case law
Taylor presents a nearly identical scenario. There, the prosecutor
told the jury, “A 40-year sentence means the defendant becomes
eligible for parole after serving 20 years. A 60-year sentence means
he becomes eligible after serving 30 years. A sentence of life or 75 still
means he becomes eligible after 30 years.” The appellant argued that
it was improper for the prosecutor to explain how parole eligibility
8
rules applied to certain sentences, and also that the prosecutor
stepped over the line by referring to "the defendant" and "he" in his
explanation. Taylor v. State, 233 S.W.3d 356, 358 (Tex. Crim. App.
2007).
The court of criminal appeals held that the argument was proper,
stating:
In the case before us, the prosecutor did not convey any
information beyond what was properly contained in the
charge when he explained how the parole eligibility rules
set out in the charge worked with forty, sixty and seventy-
five year sentences. The explanation simply ensured that
the jury understood the language set out in the
instructions. Nor do we ascribe any significance to the
prosecutor's passing use of the words "defendant" and
"he" in the course of giving his explanation. The statutory
instruction itself uses the words "defendant" and "he"
when describing the rules of parole eligibility. Nothing in
this case indicates that the prosecutor's explanations went
beyond an attempt to clarify the meaning of the jury
instructions.
Taylor, at 359.
Appellant cites to several cases that held that the prosecutor’s
argument was improper, but these cases all pre-date Taylor, above.
As explained by the Fort Worth Court of Appeals, the reasoning these
cases relied upon, and upon which Appellant now seizes, appears not
to have survived the court of criminal appeals' decision in Taylor. See
9
Waters v. State, 330 S.W.3d 368, 372 (Tex. App.—Fort Worth 2010,
pet. ref’d).
Application to the facts
Just like Taylor, the prosecutor in Appellant’s case merely
explained how parole eligibility worked with fifty, sixty, and life
sentences. The explanation simply ensured that the jury understood
the parole instructions. The explanation did not go beyond an attempt
to clarify the jury instructions, and the trial court did not abuse its
discretion in overruling Appellant’s objections to the prosecutor’s
argument.
Harmless error
If the court determines that the trial court erred in overruling
Appellant’s objections to the prosecutor’s comments on the parole
law, the next step is a harm analysis.
Nonconstitutional error must be disregarded if it does not affect
substantial rights. Tex. R. App. P. 44.2(b). To determine whether
improper comments on parole law affect substantial rights, courts
balance three factors: (1) the severity of the misconduct (prejudicial
10
effect), (2) curative measures, and (3) the certainty of the punishment
assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004).
Under the first factor, severity of the misconduct, the prosecutor’s
comments concerning parole were brief. Moreover, she explicitly told
the jury that they cannot consider when Appellant will actually get
parole and that they do not need to talk about that. 6RR 51.
Under the second factor, curative measures, the jury charge
accurately instructed the jury on parole law, per Tex. Code Crim.
Proc. art. 37.07 §4(b), and the trial court also told the jury that “the
law is the charge that is given to you and you will be guided by the
charge.” CR 140-41; 6RR 53. Appellate courts generally presume that
a jury follows the trial court's instructions. Gamboa v. State, 296
S.W.3d 574, 580 (Tex. Crim. App. 2009).
Under the third factor, certainty of the punishment assessed, the
jury likely would have given Appellant the same punishment even if
the prosecutor had not made the parole comments. Appellant
attacked a 64-year-old woman as she was taking a morning walk on a
hiking trail. He dragged her to the ground and raped her in broad
11
daylight. He told her that he was going to kill her, and she believed
him. Additionally, Appellant had previously been adjudicated for
sexually assaulting a six-year-old girl. 5RR 31-37; SX 72 at 7RR 138;
SX 83 at 7RR 162. Several people testified that Appellant received
extensive sex offender treatment for the prior offense, but clearly he
did not rehabilitate himself. 5RR 38-95. One therapist described
Appellant as very manipulative. 5RR 92. Finally, the jury still could
have considered parole law in its deliberations, based on the trial
court's instructions, even if the prosecutor had not made any
comments about parole.
Balancing these three factors, the prosecutor's comments were
harmless, and Appellant’s second point of error should be overruled.
Note about Appellant’s requested relief
Appellant has requested a new trial, but if this court sustains
either point of error above, Appellant is entitled to a new trial on
punishment only. See Tex. Code Crim. Proc. art. 44.29(b).
12
Reply Point Three: The evidence is legally sufficient to
prove penetration.
Appellant argues that there was no evidence to show that
Appellant’s sexual organ penetrated the victim’s sexual organ and
that the victim said that Appellant did not penetrate her.
Standard of review
In reviewing the legal sufficiency of the evidence, the appellate
court looks at the evidence in the light most favorable to the verdict
and decides whether a rational jury could have found guilt beyond a
reasonable doubt, based on the evidence and reasonable inferences
therefrom. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010);
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The court presumes
that the jury resolved any conflicts in the evidence in favor of the
verdict because the jury is the sole judge of the weight and credibility
of the evidence. Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 326.
The court does not re-evaluate the evidence or substitute its judgment
for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.
App. 1999).
13
Case law
Penetration of the female sexual organ includes any intrusion
beyond the outer labia, or lips. The State does not have to show that
the penis actually entered the vaginal canal. Rynes v. State, 479
S.W.2d 70, 72 (Tex. Crim. App. 1972).
Additionally, the victim does not have to testify that there was
penetration. Penetration can be proven by circumstantial evidence. In
Steadman, for example, the appellant argued that the evidence was
legally insufficient to show penetration of the victim’s sexual organ by
the appellant’s sexual organ because the child victim only said that
the appellant “touched” her tutu (her word for vagina) and put his
penis “on” her tutu. She never said that the appellant penetrated her
or put his penis in her vagina. And although the victim had notches in
her hymen and posterior fourchette, the SANE nurse testified that the
notches were not definitive proof of abuse. Finally, the victim and the
appellant both had gonorrhea, but the appellant admitted touching
the victim’s vagina with a finger on which his semen was present, and
a doctor testified that it was possible to transmit gonorrhea in this
14
manner. Steadman v. State, 262 S.W.3d 401, 404-06 (Tex. App.—
Waco 2008, pet. granted).
Nevertheless, the court of appeals found that the evidence was
legally sufficient because the evidence could lead a reasonable jury to
conclude that the contact between the appellant’s sexual organ and
the victim’s sexual organ was "more intrusive than contact with her
outer vaginal lips." Id. at 407, quoting Vernon v. State, 841 S.W.2d
407, 409 (Tex. Crim. App. 1992). 1
Application to the facts
In this case, the victim testified:
His penis was thrusting very hard against my vagina.
3RR 91.
No, it wasn’t just feeling some pressure. His erect penis
was banging against my vagina. 3RR 135.
He was pounding against my vagina. 3RR 137.
She also testified that she felt his erect penis and that he was
thrusting his hips. 3RR 137. Viewing this evidence in the light most
favorable to the verdict, a reasonable jury could have easily inferred
1 Thecourt of appeals went on to find the evidence factually insufficient, but
the court of criminal appeals reversed, and the evidence was found factually
sufficient on remand. See Steadman v. State, 280 S.W.3d 242 (Tex. Crim.
App. 2009); Steadman v. State, No 10-07-00105-CR, 2009 Tex. App. LEXIS
9594, 2009 WL 4852156 (Tex. App.—Waco 2009, no pet.).
15
that the contact between Appellant’s sexual organ and the victim’s
sexual organ was more intrusive than contact with just her outer
vaginal lips.
The physical evidence also supported the jury’s finding of
penetration. Diagrams admitted into evidence showed that both the
urethra and the cervix are inside or below the labia. See SX 70 at 7RR
135. The sexual assault nurse examiner testified that the victim’s
urethra was red and irritated, and the victim testified that she felt
burning from her vagina when she used the bathroom the next day.
3RR 105, 163; 4RR 56. Additionally, the nurse noted a few red areas
and a little bit of blood on the cervix. 4RR 57. She testified that the
redness on the cervix could possibly be normal redness, but it is not
normal to see blood there in a postmenopausal woman (such as the
victim). 4RR 60. She testified that the blood could have come from
tearing in the vagina, which would require penetration, although the
tearing could have happened during consensual sex.2 4RR 91-93. The
nurse also testified that she swabbed the victim’s labia, the creases,
2 The victim apparently had sex with her husband some time before being
assaulted in this case, as her husband’s sperm was found on the vaginal
swabs. 4RR 131.
16
and the clitoral hood. 4RR 65. A DNA analyst then testified that
Appellant is the source of DNA from sperm found on a labial swab.
4RR 113-14. Again, all of this evidence could lead a reasonable jury to
conclude that the contact between Appellant’s sexual organ and the
victim’s sexual organ was more intrusive than mere contact with her
outer vaginal lips.
Appellant argues that his DNA could have transferred to the
victim’s labia from her underwear or some other source, but this does
not view the evidence in the light most favorable to the verdict.
Transference is technically possible, but a rational jury could have
rejected this alternative hypothesis. Additionally, while it is true that
the victim told the police that Appellant had not penetrated her, she
explained to the jury that she only meant that she did not think that
his penis had entered the vaginal canal. 3RR 138-39, 149-54, 161-62.
Again, the State is not required to prove this degree of penetration.
Rather, any intrusion beyond the labia is sufficient.
In sum, the evidence is legally sufficient to support the jury’s
finding of penetration, and this point of error should be overruled.
17
Prayer
The State asks this Court to overrule Appellant’s points of error
and affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Timothy Elliott, Law Clerk
18
Certificate of Compliance and Service
I hereby certify that this brief contains 3,312 words. I further
certify that, on the 27th day of July, 2015, a true and correct copy of
this brief was served, by U.S. mail, electronic mail, facsimile, or
electronically through the electronic filing manager, to the
defendant’s attorney, Linda Icenhauer-Ramirez, Attorney at Law,
1103 Nueces, Austin, Texas 78701.
Angie Creasy
19