In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00073-CR
MANUEL JUAREZ-MENDEZ, APPELLANT
V.
THE STATE OF TEXAS
On Appeal from the 137th District Court
Lubbock County, Texas,
Trial Court No. 2020-421,080, Honorable Trey McClendon III, Presiding
April 18, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Manuel Juarez-Mendez appeals his conviction for aggravated sexual assault. His
victim, VR, was the young mother of his children. Apparently unwed to him, VR decided
to end the relationship. That resulted in appellant forcing his way into her house, directing
VR into her bedroom, locking the bedroom door behind them, physically impeding VR’s
exit, directing VR to pack in preparation for leaving with him, forcing her onto a bed after
she refused to leave, sitting atop her as she fought him, forcing a blanket into her mouth,
regaining control of her after she momentarily escaped his grasp, twice forcing a pillow
over her face, awakening her after rendering her unconscious, removing her pants, and
ultimately penetrating her vagina with his penis without her consent.
Five issues pend for our review. They involve the sufficiency of the evidence
supporting conviction, charge error, and the omission of a lesser-included offense. We
affirm.
Issue One: Sufficiency of the Evidence
Through his first point, appellant alleges the evidence was insufficient to establish
that he placed her in fear of serious bodily injury or that he had the requisite mens rea
when placing her in such fear. We overrule the issue.
The applicable standard of review is that described in Martin v. State, 635 S.W.3d
672, 679 (Tex. Crim. App. 2021), and Hammack v. State, 622 S.W.3d 910, 914–15 (Tex.
Crim. App. 2021). Under it, we compare the evidence of record to the elements of the
offense as that offense is described in a hypothetically correct jury charge. Hammack,
622 S.W.3d at 914. The hypothetically correct charge here would require proof, beyond
reasonable doubt, that while committing sexual assault, appellant “by acts or words
place[d] the victim in fear that . . . serious bodily injury [would] be imminently inflicted on
any person.” See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii); Salazar v. State, 562
S.W.3d 61, 66 (Tex. App.—Corpus Christi 2018, no pet.).
In deciding if the State proved that aggravating element, we must remember the
victim need not expressly testify she was afraid or scared, or otherwise feared for her life.
Blacklock v. State, 611 S.W.3d 162, 168 (Tex. App.—Houston [14th Dist.] 2020, pet.
ref’d); Lourenco v. State, No. 05-13-00192-CR, 2015 Tex. App. LEXIS 750, at *22 (Tex.
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App.—Dallas Jan. 28, 2015, no pet.) (mem. op., not designated for publication). Indeed,
if the objective facts of the assault are of the ilk that naturally would cause the victim to
fear for her life, then one can reasonably infer she had the requisite level of fear, without
her expressed admission of fear. Id. And, examples of objective facts which naturally
would cause one to fear death or serious bodily injury include the assailant’s employment
of a deadly weapon, utterance of explicit threats, or use of excessive force or violence at
the time. Id.
To reiterate, we find evidence that appellant forced his way into the house, directed
VR to a bedroom, locked the door, and impeded her exit. Then, VR found herself being
forced onto the bed with appellant straddling her torso. In response to her screams,
appellant told her that no one would hear them. They ultimately resulted in appellant
shoving a blanket into her mouth, which act, according to VR, impeded her breathing. VR
having succeeded in removing the blanket, appellant then twice attempted to smother her
with a pillow. The last effort resulted in VR losing consciousness. Undeterred, appellant
revived his victim only to rape her.
Blankets and pillows may not be items one normally considers deadly weapons.
Nevertheless, a reasonable juror can reasonably infer that when forcibly placed over a
person’s mouth or nose in a way that impedes breathing, their use or intended use was
capable of causing death or serious bodily injury; he or she can reasonably infer that the
items became deadly weapons. See TEX. PENAL CODE ANN. § 1.07(17)(B) (defining
“deadly weapon” as including “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury”); see also Soto v. State, 156 S.W.3d
131, 137 (Tex. App.—Fort Worth 2005, pet. ref’d) (concluding that a “pillow used in the
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case now before this court was, in the manner of its use and intended use, capable of
causing death and serious bodily injury and that the pillow, therefore, was a deadly
weapon”). So, appellant’s use of the blanket and pillow, as he did, naturally would cause
a victim like VR to fear for her life, especially after having been subjected to appellant’s
other physically violent acts described earlier. To that we add VR’s own words. She
actually testified that she was “scared” appellant would “hurt me.” Considering all of this
evidence in a light favorable to the verdict, we conclude that the record contains more
than ample proof allowing a reasonable juror to infer, beyond reasonable doubt, that
appellant’s “acts or words place[d] the victim in fear that . . . serious bodily injury [would]
be imminently inflicted” upon her.
That appellant suggests other evidence could be interpreted in a way that indicates
VR merely worried about the safety of her children, as opposed to her physical well-being,
matters not. Making such an argument is merely an exercise in the misapplication of the
standard of review, an exercise that many undertake on appeal. The jury, not the
reviewing court, is the sole judge of the credibility of witnesses and the weight afforded
their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Such
is a fundamental principle often misunderstood, if not ignored, by appellants. Due to that
principle, the very evidence that appellant deems favorable to him is the very evidence
the jury is free to discredit.
Evidence of the way appellant used the blanket and pillows also provides sufficient
evidence to negate another of appellant’s arguments. Again, he asserts that the State
failed to prove he had the requisite mens rea when engaging in the conduct causing VR
to fear for her well-being. Assuming arguendo that the State was required to prove he
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intended to place VR in fear of imminent serious bodily injury, his (1) telling her he was
going to have sex with her, (2) forcing himself atop her while restraining her efforts to
escape, (3) telling her that her screams were futile, (4) shoving a blanket into her mouth,
(5) twice attempting to suffocate her with a pillow, and (6) his reviving her to experience
the ensuing rape serve the purpose.
Issue Two: Charge Error–Instruction that Fear Must be “Reasonable”
Appellant next urges “the trial court should have stepped in to make sure the cause
of justice was advanced and not impeded by requiring a reasonable fear for conviction of
the aggravated offense.” In other words, he posits that the trial court should have
instructed the jury that VR’s fear of serious bodily injury had to be reasonable. We
overrule the issue.
The words of § 22.021(a)(2)(A) say nothing about the victim’s fear being
reasonable. It merely iterates that “by acts or words [the accused] places the victim in
fear that . . . death, serious bodily injury, or kidnapping will be imminently inflicted on any
person.” TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii). Consequently, the trial court’s
instruction tracked the statute by omitting reference to the victim’s fear being reasonable,
and an instruction that tracks the penal statute under which one is prosecuted is not
erroneous. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Smith v.
State, No. 04-13-00711-CR, 2014 Tex. App. LEXIS 13705, at *31 (Tex. App.—San
Antonio Dec. 23, 2014, no pet.) (mem. op., not designated for publication); Whitney v.
State, 396 S.W.3d 696, 703 (Tex. App.—Fort Worth 2013, pet. ref’d).
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Issue Three: Charge Error–Incomplete Definition
Through issue three, appellant complains that the trial court erred by omitting from
its charge a complete definition of “knowingly.” According to appellant, the “‘fear’ element
[incorporated into § 22.021(a)(2)(A)(ii)] is still a result of conduct” and “[r]esult of conduct
culpable mental state is not defined anywhere in the jury charge.” Its omission allegedly
“reduced the state’s burden of proof of the aggravating circumstance and is egregious
error in light of the greater punishment that flows from an aggravated finding by the jury.”
We overrule the issue.
Admittedly, the jury charge at bar contained only one of the two definitions of
“knowingly,” that is, the one applicable to “nature of conduct” offenses. See TEX. PENAL
CODE ANN. § 6.03(b) (stating that a “person acts knowingly, or with knowledge, with
respect to the nature of his conduct . . . when he is aware of the nature of his conduct or
that the circumstances exist”). Nevertheless, aggravated sexual assault is a conduct-
oriented offense. Boyd v. State, No. 02-20-00090-CR, 2021 Tex. App. LEXIS 3966, at *6
(Tex. App.—Fort Worth May 20, 2021, no pet.) (mem. op., not designated for publication);
In re T.V.T., No. 14-18-00807-CV, 2019 Tex. App. LEXIS 11032, at *7 (Tex. App.—
Houston [14th Dist.] Dec. 19, 2019, no pet.) (mem. op., not designated for publication);
accord Young v. State, 341 S.W.3d 417, 423 n.20 (Tex. Crim. App. 2011) (wherein the
court cited its opinion in Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999), for the
proposition that “‘[aggravated sexual assault] is a conduct-oriented offense in which the
legislature criminalized very specific conduct of several different types’”). Being such, the
trial court did not err in limiting the definition of “knowingly” as it did.
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Issue Four: Charge Error–Unanimity Instruction
Next, appellant argues that the trial court erred by omitting an instruction requiring
unanimity on the aggravating factor, that is, unanimity as to whether his acts placed VR
in fear of imminent serious bodily injury. We overrule the issue.
The purported risk of being less than unanimous allegedly arose from what
appellant deemed to be confusing verbiage in the charge. That verbiage consisted of the
court instructing the jurors, under the section entitled “Accusation” that “the defendant did
then and there by acts or words threaten to cause, or place, [VR] in fear that serious
bodily injury would be imminently inflicted on [VR].” (Emphasis added). Like wording
also appeared in the section labelled “Application of Law to Facts.” There, the jurors were
told they could find appellant guilty if he penetrated VR’s sexual organ without her consent
and “did then and there by acts or words threaten to cause, or place [VR] in fear that
serious bodily injury would be imminently inflicted on [VR].” (Emphasis added). Appellant
questions to what the trial court referred when saying “threatened to cause”: Was it
alluding to a threat to cause serious bodily injury, a threat to cause VR to fear serious
bodily injury, or a threat to cause something else? Whatever it was, he continues, the
jurors should have been told to unanimously agree that his acts or words either (1)
threatened to cause that something or (2) placed VR in fear of serious bodily injury.
Admittedly, those aspects of the charge are a bit confusing. Yet, appellant did not
object to them at trial. Additionally, the trial court had earlier said, under the heading
“Law,” that “[a] person commits an offense of Aggravated Sexual Assault if the person
intentionally or knowingly causes the penetration of the anus or sexual organ of another
person by any means, without that person’s consent and by acts or words places the
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victim in fear of serious bodily injury.” (Emphasis added). Missing from that passage
is the phrase “threaten to cause,” which, consequently, had the effect of telling the jury of
only one aggravating circumstance. We further note the presence of boilerplate unanimity
instruction in the charge. Through it, the jurors were told that (1) “in order to return a
verdict of guilty, you must all agree the defendant committed one of the specific acts
contained in this jury charge”; and (2) “[y]ou need not all agree that the defendant
committed all of the acts, but you must all agree that the defendant committed the same
act.”
Next, we see that the State’s closing argument emphasized the act of placing VR
in fear of serious bodily injury, as opposed to some other aggravating factor.1 And, as
mentioned earlier, the record contains ample evidence from which a factfinder could
reasonably infer that appellant’s words and actions placed VR in fear of imminent serious
bodily injury.
The foregoing circumstances lead us to conclude that even if the confusing nature
of the charge evinced error, appellant suffered no egregious harm from it. It did not affect
the very basis of the prosecution, deprive him of a valuable right, or vitally affect a
defensive theory. See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (stating
that a “conviction should be reversed for unobjected-to jury charge error only if it resulted
in ‘egregious harm’” and “[h]arm is egregious if it deprives the appellant of a ‘fair and
impartial trial’”); Bright v. State, No. 07-15-00118-CR, 2016 Tex. App. LEXIS 6885, at *14
(Tex. App.—Amarillo June 29, 2016, pet. ref’d) (mem. op., not designated for publication)
1 The prosecutor argued: “[a]nd then the last one, placed her in fear of imminent bodily injury,
serious bodily injury. I don’t have to prove, it’s not the burden of the State to prove that she actually died,
or that she actually lost major organ function, only that he placed her in fear of those things.” (Emphasis
added).
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(stating the same and describing egregious harm as harm that “affects the very basis of
the case, deprives the appellant of a valuable right, or vitally affects a defensive theory”).
Issue Five: Charge Error–Lesser-Included Offense
Though his last issue, appellant argues that the trial court erred in refusing to give
a lesser-included instruction on misdemeanor or simple assault, despite trial counsel’s
request. We overrule the issue.
The parties agree that the relevant standard in reviewing preserved charge error
relating to a lesser-included offense implicates a two-step analysis. George v. State, 634
S.W.3d 929, 937 (Tex. Crim. App. 2021). First, we determine, as a question of law,
whether the proof necessary to establish the charged offense also includes the lesser
offense. Simms v. State, 629 S.W.3d 218, 222 (Tex. Crim. App. 2021). If it does, then
we assess whether the evidence admitted at trial would permit a jury to rationally find that
if the defendant is guilty, he is guilty only of the lesser offense. Id. Our analysis ends at
the first step.
Appellant cited us to no authority holding that misdemeanor assault is a lesser-
included offense of aggravated sexual assault. Nor did he provide us with substantive
analysis illustrating why he thought the proof necessary to establish the charged offense
also included proof of the lesser. Instead, he merely quoted § 22.01(a)(1)–(3) of the Penal
Code (i.e., the simple assault statute), quoted part of the indictment, and opined that “it
seems obvious that misdemeanor assault is a lesser-included offense in this case.”
Moreover, the foregoing statute describes three distinct forms of simple assault: bodily-
injury assault, assault by threat, and offensive-contact assault. See TEX. PENAL CODE
ANN. § 22.01(a)(1)–(3). We are left to guess at which of the three appellant believes the
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trial court should have submitted. Yet, our appellate duties do not include the obligation
to pick a card for him. It is his obligation to substantively explain his position to us, that
is, pick his own card and substantively explain why its choice entitled him to the relief
sought. Furthermore, his omission is of import because authority holds that not every
form of simple assault is a lesser-included offense of aggravated sexual assault. See,
e.g., Mathis v. State, 443 S.W.3d 391, 396–98 (Tex. App.—Austin 2014, no pet.) (finding
that bodily-injury assault is not a lesser-included offense of sexual assault because bodily
injury is not an element of sexual assault and assault causing bodily injury requires proof
of an additional element); Cisneros v. State, No. 05-12-01532-CR, 2014 Tex. App. LEXIS
6854, at *14–15 (Tex. App.—Dallas June 25, 2014, no pet.) (mem. op., not designated
for publication) (finding bodily-injury assault is not a lesser-included offense of aggravated
sexual assault because aggravated sexual assault does not require proof of bodily injury
and evidence of penetration is not evidence of bodily injury); Denton v. State, No. 02-05-
00044-CR, 2006 Tex. App. LEXIS 6662, at *13–14 (Tex. App.—Fort Worth July 27, 2006,
pet. ref’d) (mem. op.) (concluding the same). So, we conclude that appellant’s failure to
provide us substantive analysis in the way described here relieves us from addressing
the issue. See Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012) (holding that
because the appellant failed to provide substantive analysis or authority supporting his
claim, his inadequate briefing relieved the court of addressing the claim).
One other ground also warrants rejection of his complaint. It concerns the absence
of harm. The trial court submitted to the jury the lesser offense of sexual assault. The
circumstance differentiating that offense from the accusation of aggravated sexual assault
was the absence of the aggravating factor. In other words, the trial court afforded the jury
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opportunity to convict appellant of a lesser crime if it did not believe he placed VR in fear
of serious bodily injury. Indeed, it is the supposed lack of proof of that particular
aggravating factor that warranted submission of misdemeanor assault, according to
appellant. Yet, the jury nevertheless found him guilty of the greater offense. It having
eschewed the opportunity to convict appellant of the intervening lesser-included offense
of sexual assault, we cannot say appellant suffered any harm from the trial court’s
decision to withhold an instruction on simple assault, assuming, of course, such was error.
Partida v. State, 279 S.W.3d 801, 804–805 (Tex. App.—Amarillo 2007, pet. ref’d)
(concluding that the jury’s failure to find appellant guilty of an intervening lesser-included
offense which was submitted rendered harmless the failure to instruct on an even lesser
offense).
We affirm the trial court’s judgment convicting appellant of aggravated sexual
assault.
Brian Quinn
Chief Justice
Do not publish.
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