Clyde Joe Parker v. the State of Texas

Affirmed and Opinion Filed October 19, 2023

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00932-CR

CLYDE JOE PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 071455

MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Goldstein
Appellant Clyde Joe Parker, II appeals his convictions for sexual assault,

kidnapping, and aggravated assault of complainant V.D.W. A jury convicted

appellant and sentenced him to fifty years’ confinement. In his first issue, appellant

challenges the legal sufficiency of the evidence to support his convictions. We

conclude that the multiple forms of evidence—testimonial, photographic, and

video—affirmatively linked appellant to the sexual assault, kidnapping, and

aggravated assault.
 In his second issue, appellant challenges the trial court’s denial of his request

for an instruction on the affirmative defense of necessity. We conclude that the

evidence of appellant’s aggravated assault, causing V.D.W. to lose consciousness,

and his subsequent actions of putting her unconscious body into his truck, going to

McDonald’s, taking her to his residence, and sexually assaulting her there, militates

against the asserted harm of leaving her unconscious in a parking lot.

We affirm the trial court’s judgment.

BACKGROUND FACTS

V.D.W. was a regular visitor of Grand Central Station, a shared ministries

soup kitchen, where she ate meals, showered, and did laundry. The soup kitchen was

open weekdays from 9:00 a.m. to 1:00 p.m. V.D.W. knew appellant and had been to

his house, but V.D.W. testified that they were not in a dating relationship and had

not had consensual sex.

On August 31, 2019, V.D.W. who had been helping appellant move things

out of his truck for food and money, was alone with appellant in his vehicle.

Appellant, for no apparent reason, attacked V.D.W. by punching her in the face.

Video evidence, captured by a nearby surveillance camera, showed appellant driving

into a parking lot, V.D.W. exiting the vehicle and attempting to leave, and appellant

leaving the driver side, grabbing at, and punching V.D.W. After being punched,

V.D.W. fell to the ground, seemingly unconscious and non-responsive. Appellant

then lifted V.D.W., put her in the truck, and left the parking lot.

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 Although V.D.W. had no memory of exiting the vehicle, she recalled waking

up at appellant’s residence, where she was again beaten and then raped. V.D.W. was

treated at the emergency room on September 1, 2019. She presented with a bruised

and bloody face and was diagnosed with a broken collar bone and concussion.

On November 20, 2019, appellant was charged by indictment in Grayson

County for the felony offenses of aggravated sexual assault, aggravated kidnapping

and aggravated assault. Appellant pleaded not guilty to the charged offenses, and

trial commenced on September 13, 2021. During the first phase of the trial, the jury

heard testimony from nine State witnesses and two defense witnesses, along with

video evidence of part of the indicted offenses of aggravated assault and aggravated

kidnapping that occurred on August 31, 2019. After all evidence, the jury received

the charge of the court, which provided specific definitions and then set forth the

applicable law to enumerated facts. The jury verdict forms included questions for

both the indicted charge and lesser included offense for each count. For the first two

counts of aggravated sexual assault and aggravated kidnapping, the jury found

appellant guilty of the lesser included offenses of sexual assault and kidnapping

respectively. For the third count of aggravated assault, the jury found appellant guilty

of the charged offense. Punishment was tried to the trial court, which heard evidence

and assessed punishment at fifty years’ confinement. This appeal followed.

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 DISCUSSION

I. LEGAL SUFFICIENCY

In his first issue, appellant contends that the evidence was legally insufficient

to support his conviction, averring entitlement to reversal on all three charged

offenses. As to sexual assault, appellant contends the element of consent is based on

mere speculation. On the kidnapping conviction, appellant argues there is no

evidence that appellant used or threatened to use deadly force after placing V.D.W.

in his vehicle to show he had the specific intent required for abduction. Lastly,

appellant avers that V.D.W.’s injuries do not qualify as “serious bodily injury” to

support the aggravated assault conviction.

The standard of review for determining the legal sufficiency of the evidence

to support a conviction is whether, after viewing all of the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Villa v. State, 514 S.W.3d 227,

232 (Tex. Crim. App. 2017); Liverman v. State, 470 S.W.3d 831, 835–36 (Tex.

Crim. App. 2015); Jackson v. Virginia, 443 U.S. 307, 319, (1979). This standard

requires the appellate court to defer “to the responsibility of the trier of fact to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Villa, 514 S.W.3d at 232; Jackson,

443 U.S. at 319. The court conducting a sufficiency review must not engage in a

“divide and conquer” strategy but must consider the cumulative force of all the

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evidence. Villa, at 232; Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App.

2015). Deference to the trier of fact extends to the inferences drawn from the

evidence as long as the inferences are reasonable ones supported by the evidence

and are not mere speculation. Villa, at 232; Tate v. State, 500 S.W.3d 410, 413 (Tex.

Crim. App. 2016); Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).

A. Count 1: Sexual Assault

Appellant does not dispute having sexual intercourse with V.D.W. but asserts

that the State failed to establish that V.D.W. did not consent to the sexual intercourse.

The Penal Code defines lack of consent, in part, as follows:

(b) A sexual assault . . . is without consent of the other person if:

(1) the actor compels the other person to submit or participate by
the use of physical force, violence, or coercion; [or]

...

(3) the other person has not consented and the actor knows the
other person is unconscious or physically unable to resist.

TEX. PENAL CODE ANN. § 22.011(b)(1), (3). The State argues that there was sufficient

evidence to support appellant’s conviction under both definitions. We need not

consider subsection (b)(1) because we conclude there was legally sufficient evidence

to support lack of consent under (b)(3).

In Elliott v. State, the court of criminal appeals held the State is not required

to prove the victim was physically unable to resist in order to show lack of consent.

858 S.W.2d 478, 485 (Tex. Crim. App. 1993). Rather, the Court held that “where

assent in fact has not been given, and the actor knows that the victim’s physical
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impairment is such that resistance is not reasonably to be expected, sexual

intercourse is ‘without consent’ under the sexual assault statute.” Id.

Here, the surveillance footage showed appellant stopping the truck, moving

to the passenger side, and punching V.D.W., who was trying to flee. After two

punches to the face, V.D.W. fell to the ground unconscious. Appellant then

attempted to lift her into the truck but failed, and she drooped back onto the ground.

Appellant then grabbed V.D.W.’s arm and tried to shake her awake, but she lay there,

motionless. On his second attempt, appellant lifted V.D.W. and put her into his truck.

At trial, V.D.W. testified that she did not remember everything that happened.

Although she testified that she did not recall being sexually assaulted, she did

remember going outside and smoking cigarettes afterward. When V.D.W. was taken

to the emergency room the next day, she was interviewed by Karen Bounds, the

Sexual Assault Nurse Examiner (SANE) Nurse. Bounds testified that V.D.W.

recounted the events of the incident as follows:

We were riding in Mark’s truck. He stopped the truck, started hitting
me with his fist on my right side of my head. When he was through, he
drove to his house. I can’t remember some details. He took my clothes
off. The next thing I remember he was on top of me. I stayed because I
didn’t feel good. I got up this morning and walked to Grand Central
Station.

Bounds testified that she recorded V.D.W.’s statement into a SANE report, which

was admitted into evidence without objection. The report also includes V.D.W.’s

initials and signature, indicating her consent to the collection of physical evidence

to be given to law enforcement in any sexual-assault investigation.
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 Appellant contends that the record contains no direct statements from V.D.W.,

either in her statements during the SANE exam or in her trial testimony, indicating

that she did not consent to sexual intercourse. Appellant thus argues that the jury

“could only speculate” about lack of consent. We disagree. The evidence showed

that appellant knocked V.D.W. unconscious, transported her to his home instead of

the hospital, removed her clothes, and was “on top of” her when she awoke. The jury

could have reasonably inferred from this evidence that V.D.W. had not given assent

in fact. See TEX. PENAL CODE ANN. § 22.011(b)(3); Elliott, 858 S.W.2d at 485.

Additionally, the surveillance footage showed that appellant attempting, but failing,

to shake V.D.W. back to consciousness after he punched her. The jury could have

reasonably inferred that appellant knew from V.D.W.’s condition, and the fact that

he had to remove her clothes during her unconsciousness, that she could not

reasonably resist. See TEX. PENAL CODE ANN. § 22.011(b)(3); Elliott, 858 S.W.2d at

485. Therefore, the jury could reasonably conclude from the evidence that the sexual

assault was without V.D.W.’s consent.

We conclude that the evidence was legally sufficient to establish lack of

consent beyond a reasonable doubt.

B. Count 2: Kidnapping

Appellant next argues that the evidence was insufficient to support his

conviction for kidnapping.

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 The Penal Code provides that a person commits kidnapping “if he

intentionally or knowingly abducts another person.” TEX. PENAL CODE ANN. §

20.03(a). “‘Abduct’ means to restrain a person with the intent to prevent his

liberation by (A) secreting or holding him in a place where he is not likely to be

found; or (B) using or threatening to use deadly force.” Id. § 20.01(2). “‘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.” Id. § 20.01(1). “Restraint is ‘without consent’

if it is accomplished by: (A) force, intimidation, or deception. . . .” Id. § 20.01(1)(A).1

Thus, “a kidnapping becomes a completed offense when (1) a restraint is

accomplished, and (2) there is evidence that the actor had the specific intent to

prevent liberation by secretion or the use or threatened use of deadly force.”

Santellan v. State, 939 S.W.2d 155, 162 (Tex. Crim. App. 1997).

Appellant argues that there was no evidence of his intent to prevent V.D.W.’s

liberation or his use or threatened use of deadly force. However, appellant restricts

his arguments to after the assault in the parking lot. Specifically, he argues that

(italics ours):

It is undisputed that Appellant placed V.D.W. in his truck and took her
to his home after she lost consciousness. However, there is no evidence
that Appellant had the specific intent to prevent V.D.W.’s liberation by
using or threatening to use deadly force. More specifically, there is no

1
Subsection (1)(B) describes restraint without consent of children and is therefore inapplicable here.
See TEX. PENAL CODE ANN. § 20.01(1)(B).
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 evidence that Appellant used or threatened to use deadly force against
V.D.W. after the assault captured by the electric company surveillance
cameras. Although V.D.W. testified that she was scared to leave
Appellant’s house because she was afraid that he would attack her
again, this testimony does not equate to the allegations the State was
required to prove.

Would Appellant be guilty of kidnapping had he driven V.D.W. to the
hospital after she lost consciousness? Absolutely not. So the question
is, what evidence did the State present that Appellant had the specific
intent to prevent V.D.W. from leaving his home that amounted to the
use or threatened use of deadly force? No such evidence exists.

This argument fails to account for appellant’s conduct before he put V.D.W. into his

truck. V.D.W. testified that the assault began while she was still in appellant’s truck.

When appellant pulled into the parking lot, surveillance footage showed V.D.W.

opening the passenger-side door just before the truck came to a complete stop. She

then exited the truck and began to walk away. Meanwhile, appellant exited from the

driver’s side, came around to her side and, as she was attempting to leave, began

punching her in the face. Detective Ballew testified that punches to the face

constitute deadly force. Therefore, the jury could have reasonably concluded that by

punching V.D.W. in the face as she was attempting to flee, appellant intended to

prevent her liberation by the use of deadly force. At that point, the offense was

complete. See Santellan, 939 S.W.2d at 162. There was no need for the State to prove

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that appellant intended to further prevent her liberation after they arrived at his

home.2

We conclude that the evidence was legally sufficient to establish the offense

of kidnapping beyond a reasonable doubt.

C. Count 3: Aggravated Assault

Appellant finally argues that the evidence was legally insufficient to support

his conviction for aggravated assault because the evidence failed to show that

V.D.W. suffered serious bodily injury.

Under the Penal Code, a defendant commits the offense of assault if, among

other things, the defendant “intentionally, knowingly, or recklessly causes bodily

injury to another, including the person’s spouse.” TEX. PENAL CODE ANN. §

22.01(a)(1). Assault is elevated to aggravated assault if the defendant causes the

other person “serious bodily injury.” Id. § 22.02(a)(1). The Penal Code defines

“bodily injury” as “physical pain, illness, or any impairment of physical condition.”

Id. § 1.07(8). The Penal Code defines “serious bodily injury” as “bodily injury that

creates a substantial risk of death or that causes death, serious permanent

2
We further reject appellant’s contention that the State was required to prove his actual use of deadly
force, whether at his home or otherwise. In Brimage v. State, the court of criminal appeals considered
whether the use or threatened use of deadly force were “subsets of the act element of ‘restraint’” or whether
they “modify the mens rea element of ‘intent to prevent liberation.’” 918 S.W.2d 466, 475 (Tex. Crim.
App. 1994). The Court concluded that the latter construction is correct; kidnapping becomes a completed
offense when a restraint is accomplished and the defendant “intended to prevent liberation and that he
intended to do so by either secretion or the use or threatened use of deadly force.” Id. Importantly, the Court
rejected the argument that the State must prove actual use of deadly force: “It is therefore not necessary, as
appellant argues, that the State prove a restraint accomplished by either secretion or deadly force. Instead,
the State must prove that a restraint was completed and that the actor evidenced a specific intent to prevent
liberation by either secretion or deadly force.” Id. at 476.
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disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. § 1.07(46).

Dr. Jason Carter, emergency physician at Wilson N. Jones Hospital, examined

and oversaw the treatment of V.D.W. Dr. Carter observed bruising and dried blood

on her face. V.D.W. complained of pain on her shoulder and to her face. A CAT

scan of the head, neck, the cervical spine, and an x-ray of the shoulder, were

performed and reflected V.D.W. had a broken collar bone. Additionally, Dr. Carter’s

clinical diagnosis was that she had a concussion. Dr. Carter testified that concussions

can impact someone’s memory called “anterograde or retrograde amnesia is the big

word. It just means you might not remember the events that happened either before

or after that head injury.” Dr. Carter agreed that if “someone is hit and they lose

consciousness[,]” that means they have a concussion.

Dr. Carter testified that, in his understanding, “serious bodily injury means

bodily injury that creates a substantial risk of death, or causes death, serious

permanent disfigurement, or protracted loss of impairment of the function of any

bodily member or organ.” When asked his opinion, Dr. Carter opined that V.D.W.’s

“injuries would be consistent with serious bodily injury.” He explained that from the

video, he could “see she’s unconscious.” He described the assessment process in

approaching an unconscious person, in an assault case, the concern is first about

“spinal cord injury from blunt trauma to the head” as such an injury could result in

death. Dr. Carter also testified that he would “anticipate that the longer you are

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unconscious, the more severe your injuries. . . . So being unconscious for a minute,

in my mind, raises the seriousness of the injuries in that case.” Based upon the video,

‘[s]he had what I would consider, I guess, a protracted loss of consciousness with

a—you know, high serious risk of a brain injury” that could possibly result in death.

Q. Based upon all of your years of experience, and what you have
observed, and the people that you have treated, do you believe that the
injuries sustained in this case, that have been admitted in the medical
records, the photos, the video that you have seen, do you believe that
constitutes serious bodily injury?

A. Yes, sir.

Q. Do you have any reasonable doubt as to whether serious bodily
injury took place?

A. No

On this record, the jury could have reasonably concluded that appellant caused

V.D.W. to suffer a bodily injury that created a substantial risk of death.

Accordingly, we conclude that the evidence was legally sufficient to support

appellant’s conviction for aggravated assault.

D. Summary

In light of our conclusion that the evidence was legally sufficient to support

appellant’s conviction on all three alleged counts, we overrule appellant’s first issue.

II. JURY CHARGE

In his second issue, appellant contends that the trial court erred in denying his

request for an instruction on necessity as a defense to the charge of aggravated

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kidnapping and the lesser-included charge of kidnapping. Section 9.22 of the Texas

Penal Code, entitled “Necessity,” provides:

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately
necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly
outweigh, according to ordinary standards of reasonableness, the
harm sought to be prevented by the law proscribing the conduct;
and

(3) a legislative purpose to exclude the justification claimed for
the conduct does not otherwise plainly appear.

TEX. PENAL CODE ANN. § 9.22.

A court of appeals applies a two-step process in analyzing a complaint of jury

charge error. First, an appellate court must determine if an error actually exists in the

charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985). Second, if error is found to exist, the court must

then determine if the error caused sufficient harm to warrant reversal. Almanza, 686

S.W.2d at 171.

A trial court is required to instruct the jury on any defensive theory that is

raised by the evidence. Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App.

2007). However, this rule is subject to the confession-and-avoidance doctrine, which

applies to the necessity defense. Juarez v State, 308 S.W.3d 398, 399 (Tex. Crim.

App. 2010). Under the confession-and-avoidance doctrine, a defendant must admit

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to all elements of a charged offense before he will be entitled to a defensive

instruction. Id. at 401. Alternatively, a defensive instruction is required when the

defendant’s evidence “essentially admits to every element of the offense, including

the culpable mental state.” Id.

In Juarez, the Court distinguished the case before it from previous decisions

holding that a defendant’s denial of an element of the charged offense precluded a

necessity instruction under the confession-and-avoidance doctrine. Id. at 405 (citing

Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); and Ex parte Nailor,

149 S.W.3d 125, 132–33 (Tex. Crim. App. 2004)). Juarez was charged with assault

on a peace officer for biting the officer’s finger during an arrest. Id. at 400. Though

Juarez denied biting the officer intentionally, knowingly, or recklessly, he had also

admitted that he bit the officer to get the officer off of him because the officer was

causing him to suffocate. Id. at 405. Despite his denial, the Court held that “Juarez’s

mental state—that the biting was done either intentionally, knowingly, or

recklessly—could have reasonably been inferred from his testimony about the

circumstances surrounding his conduct.” Id. (citing Moore v. State, 969 S.W.2d 4,

10 (Tex. Crim. App. 1998) (“Mental states are almost always inferred from acts and

words.”)). The Court thus concluded that the confession-and-avoidance doctrine was

satisfied because Juarez admitted to both the act and the requisite mental state. Id.

Here, like Juarez, appellant denies having had the culpable mental state for

kidnapping—indeed, that is the only element he attacks on appeal. But unlike Juarez,

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there is no evidence to support an inference that, despite his denial, appellant

admitted the culpable mental state. Appellant argues that there was no evidence that

he used or threatened to use deadly force after placing V.D.W. in his vehicle to show

he had the specific intent required for abduction. Appellant asks us to speculate that

his lifting V.D.W. up and putting her in his truck was necessary because it was

preferable to leaving her unconscious in the parking lot.3 As we explained above, at

Section (I)(B), the culpable mental state for kidnapping is “the specific intent to

prevent liberation by secretion or the use or threatened use of deadly force.”

Santellan, 939 S.W.2d at 162. Therefore, in order for the defense of necessity to

apply, appellant would have to show that it was necessary to prevent V.D.W.’s

liberation, not that it was necessary to remove her from the parking lot for her own

safety. Appellant neither admitted that he intended to prevent V.D.W.’s liberation

nor do the surrounding circumstances support such an inference.4

Appellant failed to satisfy the doctrine of confession and avoidance; therefore,

the defensive instruction was not required. We overrule appellant’s second issue.5

3
During the charge conference, defense counsel argued that “the necessity was, the harm, was leaving
an unconscious woman in an abandoned parking lot, and the harm that could be caused from leaving an
unconscious woman in a parking lot abandoned is outweighed by the harm caused by the offense of
kidnapping where he would be moving her from place to place without her ability to consent.”
4
Specifically, the jury had the aggregate of the evidence of appellant’s conduct after leaving the parking
lot, including a McDonald’s stop and appellant minimizing V.D.W.s injuries as minor, requiring nothing
more than a band aid, despite her request to go to the hospital.
5
In denying appellant’s request for an instruction on necessity, the trial court explained: “I was reading
some background on necessity of defense that also says the conduct of the person seeking to assert the
necessity defense, their conduct cannot cause the necessity.” Given our disposition of appellant’s second
issue, we need not address the trial court’s understanding that the defense was unavailable because appellant

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 CONCLUSION

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/
Do Not Publish BONNIE LEE GOLDSTEIN
Tex. R. App. P. 47.2(b) JUSTICE
210932F.U05

caused the necessity. We note, however, that there is a split in authority on that issue, as our sister court
recently pointed out in Navarro v. State, 649 S.W.3d 603, 613 n.1 (Tex. App.—Houston [1st Dist.] 2022,
pet. granted) (listing cases). The court of criminal appeals has granted the appellant’s petition for review in
that case and may ultimately resolve the split.
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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CLYDE JOE PARKER, Appellant On Appeal from the 397th Judicial
District Court, Grayson County,
No. 05-21-00932-CR V. Texas
Trial Court Cause No. 071455.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Goldstein. Justices Carlyle and
Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 19th day of October, 2023.

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