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Court of Appeals of Texas, Dallas.


No. 05–09–01496–CR

Decided: August 29, 2011

Before Justices Morris, Moseley, and FitzGerald


Opinion By Justice Moseley

A jury convicted Nathaniel Stuart Edwards of the sexual assault of L.Y., a second degree felony, and assessed punishment of five years' imprisonment and a $3,000 fine.   See Tex. Penal Code Ann. §§ 22.011(a)(1)(A), (f) (West 2011).   On the jury's recommendation, the trial court suspended the sentence and placed appellant on community supervision for ten years and probated the fine.   In five issues, appellant challenges the sufficiency of the evidence to support his conviction and the trial court's rulings on the admissibility of certain evidence and the jury charge.   For the reasons set forth below, we resolve appellant's issues against him and affirm the trial court's judgment.


Appellant was indicted for allegedly intentionally and knowingly causing the penetration of L.Y.'s “anus and sexual organ” by means of appellant's finger, without L.Y.'s consent.  (Emphasis added.)   In his fifth issue, appellant challenges the sufficiency 1 of the evidence to support his conviction.   We apply the appropriate standard of review.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 895, 899 (Tex.Crim.App.2010) (plurality op.).

A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent.  Tex. Penal Code Ann. § 22.011(a)(1)(A).

L.Y. testified that in August 2008, when the incident giving rise to this case occurred, she was spending the night at her friend Jennifer's apartment.   Appellant, who was the brother of one of Jennifer's roommates, was also at the apartment.   L.Y. stated she visited briefly with appellant and others on the apartment balcony before she went to bed.

L.Y. and Jennifer were sleeping on the same mattress in Jennifer's room.   L.Y. testified she woke up about 5:00 a.m., and appellant's fingers were in her anus and vagina.   L.Y. testified that appellant's fingers were there at the same time, that both penetrations were painful, and that she did not consent.

Appellant testified he entered the bedroom and touched one of the girls—L.Y. or Jennifer—on the leg or mid-thigh “hoping to get a favorable response ․ hoping to have sex.”   He denied any penetration, saying he only touched L.Y.'s thigh.   He questioned the credibility of L.Y.'s explanation of the incident and said L.Y. was “lying.”   He also contends there was no evidence any penetration was performed intentionally or knowingly.

We defer to the jury's role as the sole judge of the witnesses' credibility and the weight to give their testimony.   See Brooks, 232 S.W.3d at 899;  see also Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.] 1978) (intent not ordinarily determined by direct proof, but is inferred from circumstantial evidence).   Reviewing all the record evidence in the light most favorable to the jury's verdict, as well as the reasonable inferences arising from that evidence, we conclude a rational jury could have found the appellant guilty of all of the elements of the offense beyond a reasonable doubt.   See Jackson, 443 U.S. at 319;  Brooks, 323 S.W.3d at 895, 899.   We resolve appellant's fifth issue against him.


A.  Disjunctive Charge

The application paragraph of the charge permitted the jury to find appellant guilty of the offense of sexual assault if it found that he intentionally or knowingly caused the penetration of L.Y.'s “anus or sexual organ” by means of his finger.  (Emphasis added.)   At the charge conference, appellant requested “and” rather than “or” “because in this case the facts testified to ․ are dual, simultaneous digital anal and vagina[l] penetration.”

In his second issue, appellant contends the trial court erred by refusing his request to instruct the jury to find him guilty if it found he penetrated L.Y.'s anus and vagina, rather than anus or vagina.   He argues here that the error could have resulted in a non-unanimous verdict, with some jurors deciding he touched L.Y.'s anus, and other deciding he touched L.Y.'s vagina.

1. Applicable Law and Standard of Review

A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent.  Tex. Penal Code Ann. § 22.011(a)(1)(A).   The phrasing of these separate, discrete acts in the disjunctive and the prohibition of both evince (at least for a nature-of-conduct type penal provision) “a legislative intent that they be construed to constitute separate offenses, not mere manner and means of committing a single offense.”   See Gonzales v. State, 304 S.W.3d 838, 847–48 (Tex.Crim.App.2010) (construing disjunctive phrasing of aggravated sexual assault definition in penal code section 22.021(a)(1)(B)(i)).

“When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.”   Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App.2005).  “Unanimity” means that “each and every juror agrees that the defendant committed the same, single, specific act.”  Id. at 745.  “Jury unanimity is required on the essential elements of the offense, but is generally not required on the alternate modes or means of commission.”  Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007) (citation omitted).

We review alleged jury charge error in two steps.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g).   First, we review the charge to determine if error exists.  Id. If the charge is erroneous, we then evaluate the harm caused by the improper charge.  Id. Because appellant failed to object to the charge on non-unanimity grounds, if we find such error, we consider whether he suffered egregious harm.   See id.;   see also Tex.Code Crim. Proc. Ann. arts. 36.14 (West 2007) (defendant “shall present his objections thereto [that is, to the court's written charge] in writing, distinctly specifying each ground of objection”);  36.19 (West 2006) (providing for review of charge on appeal and stating, “All objections to the charge ․ shall be made at the time of the trial.”).

To establish egregious harm, the record must demonstrate actual, rather than merely theoretical, harm from jury charge error.  Ngo, 175 S.W.3d at 750.   Errors that result in egregious harm are those that affect “the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.”  Id. (citation omitted).   We review the error in light of the entire jury charge, the state of the evidence, including contested evidence and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole.   See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004).

2. Discussion

We agree that the specificity in penal code section 22.011(a)(1)(A) reflects a legislative intent that each discrete act—vaginal penetration and anal penetration—constitutes a separate offense.   See Gonzales, 304 S.W.3d at 849 (considering same-transaction conduct constituting aggravated sexual assault:  causing penetration of “anus or sexual organ” as separate offenses for double jeopardy purposes);  compare Tex. Penal Code Ann. § 22.011(a)(1)(A), and § 22.021(a)(1)(A)(i) (West 2011).   Although the trial court's charge included an instruction that the jury's verdict had to be unanimous, it did not instruct the jury to reach a unanimous verdict as to a specific criminal act.   Such failure was error because some jurors could have believed appellant penetrated L.Y.'s anus, while others could have believed he penetrated her vagina.   See Pizzo, 235 S.W.3d at 19;  Ngo, 175 S.W.3d at 748–49.   Concluding the charge is erroneous, we review the record for egregious harm.

In describing the evidence in its opening statement, the State said that L.Y. “woke up” and discovered appellant “had his fingers in her anus and vagina.”   In his opening statement, counsel for appellant referred to L.Y.'s “genital trauma associated with forceful digital penetration.”   As noted above, L.Y.'s testimony was that appellant penetrated both her anus and vagina.   Appellant, however, denied any contact with or penetration of either L.Y.'s anus or vagina, testifying he merely touched her thigh.   In other words, the disputed evidence concerned whether there was any penetration at all, not which part or parts of L.Y.'s body was penetrated.

The charge included a three-sentence paragraph instructing the jury to select a presiding juror who would preside at the deliberations and vote with the jury.   The last sentence reads, “Your verdict must be unanimous and signed by the presiding juror.”   The verdict form provides an option for the jury to find appellant guilty of sexual assault “as charged in the indictment.”   In its oral comments, the trial court told the jury that the “guilty option” signed by the presiding juror certified a “unanimous verdict.”

Also, the closing arguments, like the evidence at trial, focused on the issues of penetration, consent, and credibility.   The State argued there was an issue whether appellant penetrated “her anus or female sexual organ.”   In reviewing the evidence, the State referred to penetration of L.Y.'s vagina and anus.   In closing argument, counsel for appellant referred to vagina and anus in the disjunctive but also to “dual simultaneous digital and anal assaults.”   From our review of the record, we conclude no rational juror voting to convict could have concluded other than that appellant penetrated L.Y.'s anus and vagina at the same time.   See Ngo, 175 S.W.3d at 750;  Bluitt, 137 S.W.3d at 53.   Thus, we conclude that the error in the jury charge complained of on appeal did not result in egregious harm.   We resolve appellant's second issue against him.

B. Assault Charge

In his third issue, appellant contends the trial court erred by refusing his request to charge the jury on assault.   On appeal, appellant argues that he was entitled to an instruction on assault because it “was in accord with the defense he presented.”   He relies on Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991), which concerned a defendant's right to an instruction on a defensive issue—there, mistake of fact—if it is raised by any evidence.   However, assault is an offense;  it is not a defense to sexual assault.   See, e.g.,Tex. Penal Code Ann. §§ 8.02(a) (West 2011) (“It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”);   22.01(a)(3) (West 2011) (defining offense of assault by causing “physical contact”).   Based on appellant's argument, we discern no error in the trial court's refusal to instruct the jury on assault, and we resolve appellant's third issue against him.   See Almanza, 686 S.W.2d at 171.


A.  Social Site Evidence

The record shows that during cross-examination, L.Y. was asked how she handled “stressful situations,” and L.Y. mentioned the name of a counselor.   Counsel then asked L.Y., “What is Sober Circle?”   L.Y. responded that it was a “website community” of which she was a member.   The State asked to approach the bench.

Outside the jury's presence, appellant's counsel sought to admit copies of one page from “Sober Circle,” and a page entitled “LC's Tweakers,” which L.Y. identified as a sub-group of Sober Circle.   The “LC Tweakers” page identified the group as an “online community for crystal meth users in recovery” and identified L.Y. as a member.   The “Sober Circle” page indicated that L.Y. had been a member since November 26, 2007, that she had last logged in on that date, and that L.Y. was twenty-one years old.  (At trial L.Y. had testified she was twenty years old in August 2008, when the incident giving rise to this case occurred.)   Appellant's counsel argued the page showed that L.Y. lied about her age by “holding herself out to be older than she is.”   Appellant's counsel argued this evidence was “relevant” to the weight the jury would give to her testimony concerning the incident giving rise to this case and “relevant to her character.”   After some discussion as to whether the information about L.Y.'s age was a statement made by her as of the date she became a member or a date computed by the website as of the date it was accessed, the State urged, “That's a side issue, Judge.   It's improper impeachment.”   The trial court sustained the State's objection.

Next (and still outside the presence of the jury), appellant's counsel sought to admit a copy of a Facebook page of a friend of L.Y.'s. The page contained a photograph of L.Y. holding a drink in her hand and an associated “chat” referencing, among other things, her “intoxication level.”   Counsel for appellant argued the picture was taken the day after the incident giving rise to this case occurred, and the picture was relevant to show L.Y.'s “stress management.”   L.Y. testified the photograph was posted the day after the incident but that the photo had been taken at a birthday party on an earlier date.   The trial court sustained the State's objection, stating “[n]ot relevant” and (later) “I don't think it has anything to do with this case.”

In his first issue, appellant contends the trial court abused its discretion by failing to admit “social site listings” concerning L.Y.

1.  Standard of Review and Applicable Law

We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard.   We reverse only when that decision was so clearly wrong as to lie outside the zone of reasonable disagreement, and we uphold the trial court's ruling if is was correct on any theory reasonably supported by the evidence and applicable to the case.   See Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003);  Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

2. Discussion

Appellant argues the “social site listings” were relevant to L.Y.'s alcohol use and her credibility and the weight to be given her testimony.   However, the trial court sustained the State's objection of “improper impeachment” to the Sober Circle evidence.   Rules of evidence 607 through 610 and 613 speak to witness impeachment.   Appellant makes no argument concerning “impeachment” and does not cite any of these witness impeachment rules.   Specifically, we conclude the Sober Circle exhibit does not come within the parameters of rule 608(a) concerning opinion and reputation evidence, and it falls within the prohibition of rule 608(b).  See Tex.R. Evid. 608.

Appellant argues that the Sober Circle exhibit and the Facebook exhibit were “contradictory, one seeming to state that L.Y. was committed to a life of recovery and, perhaps, abstinence, while the other posting established that L.Y. was drinking heavily instead.”

We conclude the trial court did not abuse its discretion by excluding the Sober Circle exhibit and the Facebook exhibit.   See Laney, 117 S.W.3d at 857;  Willover, 70 S.W.3d at 845.

B. Hearsay

Appellant's fourth issue states, “Was there reversible error arising from the admission of hearsay evidence?”   Under this issue, appellant argues that “[h]earsay evidence was admitted as to several facts,” directing our attention to four separate instances during the trial, involving separate objections and rulings by the trial court.

In each of the first two instances, the trial court sustained appellant's hearsay objection to a question asked by the State and granted his request to instruct the jury to disregard, but denied appellant's request for a mistrial.   As to the third instance, the trial court overruled appellant's hearsay objection to a question—adduced to Jennifer (a resident of the apartment)—about whether appellant's brother told her that appellant thought he was touching her.   In doing so the trial court stated Jennifer had already answered the question.   Thereafter, Jennifer subsequently clarified—without objection—that appellant's sister-in-law (not his brother) had made the comment.   The last instance involved the State's questioning of a witness about whether appellant typically exhibited good judgment after drinking.   After the trial court overruled appellant's objection of “speculation” (not hearsay), the witness stated she did not have personal knowledge on which to base an answer.

Appellant argues “the four hearsay statements unfairly bolstered the credibility of certain witnesses” and “[i]nferences drawn from the hearsay were inconsistent with the defense presented.”   At the conclusion of his issue he asserts generally:  “If this Court agrees, a mistrial is in order and the trial court erred when it failed to grant the mistrial.”

We agree with the State that appellant's point is multifarious;  it embraces more than one specific ground and in fact attacks several distinct and separate rulings of the trial court.   See Stults v. State, 23 S.W.3d 198, 205 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd).   These rulings related to different objections and requests made by different parties, which are subject to different standards of review, harm analyses, and questions regarding waiver.   Therefore, we conclude appellant's fourth point is inadequately briefed, and, as such, is waived.   See id.;  Colman v. State, No. 05–04–00146, 2005 WL 3387712, at *2 (Tex.App.—Dallas Dec. 13, 2005, pet. ref'd) (not designated for publication) (issue complaining of rulings on hearsay objections to at least five different statements is multifarious and presents nothing for review);  see also Tex.R.App. P. 38.1(h).  IV. CONCLUSION

Based on our disposition of appellant's five issues, we affirm the trial court's judgment.


FN1. In Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review.   Accordingly, we analyze appellant's issue under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).   See Brooks, 323 S.W.3d at 895..  FN1. In Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review.   Accordingly, we analyze appellant's issue under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).   See Brooks, 323 S.W.3d at 895.


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