Description:
K.H. testified that after parking her car near a friend’s house, appellant approached
her claiming he was an undercover police officer and told her she needed to step out of
her car because he needed to search it. According to K.H., when she complied, appellant
asked her to put her hands on top of the hood of the car, and he performed a search of
her body “like a regular cop.” K.H. stated that appellant put her hands behind her back,
led her to his car, and placed her in his car; however, when she attempted to get out of
the car, the door was locked and would not open.
K.H. testified that appellant blindfolded her, took her to a building, carried her into
a room, and threw her on a bed. According to K.H., she fell off the bed, appellant became
angry at her, jumped on top of her, and “grabbed cocaine and he shoved it up [her] nose
and shoved it back in [her] mouth.” K.H. stated that appellant told her not to spit out the
cocaine and that she was scared. K.H. recalled that appellant then “shoved his penis in
[her] mouth” and took off her pants and underwear. K.H. testified that appellant put her
on the bed. K.H. stated appellant then
turned me over on the bed and he put a pillow over my head and I was going—don’t know what he was doing he was going back and forth and in and out, I kept hearing the door close and open and I—I kept trying to talk because I was scared, and I said, are you still there, or can I at least just keep talking because I don’t know what’s going on. And I said, if you’re gonna leave can you at least put a blanket over me so I’m not just, you know, bare and laying upside down, and he grabbed a sheet and he put it over me while I was facing down.
K.H. testified that after she orally ingested the cocaine, appellant made her inhale
another drug through her mouth. She said, “Then I would have an anxiety attack all over
again and then he would sexually assault me again.” The prosecutor stated, “We’re
gonna have to talk about each one of those times,” and K.H. replied, “Okay.” K.H. could
not remember the “order” of each sexual assault so the prosecutor said, “Okay, tell us
what you remember happening next.” K.H. said, “I remember that he got on top of me
and he started having sex with me and then he would drug me again, I would have another
anxiety attack another time[.]” K.H. clarified that she meant that appellant had penetrated
her vagina with his penis. She then stated, “At that point, I really can’t remember. I know
that—I know a few times that he did [perform sex acts on me] and one was through
vaginal, another one he turned me around and I remember gripping on to the floor and
trying to reach for anything I can grab while he was putting his penis in my anus. He
was—after I started crying and I told him that it was hurting he stopped and he started
putting cocaine all over my anus and he said that that was gonna make it not hurt as
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much.” When asked by the prosecutor if appellant put anything else besides his penis in
her anus, K.H. replied, “Yes. . . . He grabbed—he grabbed a dildo and I saw it, it was
flesh colored and he would put his penis in my vagina and the dildo inside of my anus at
the same time.” When asked by the prosecutor, “Did he sexually assault you in any other
way,” K.H. responded, “I can't remember. I just know everything was just repeated, and
at one point, I was having anxiety attacks so much, so bad, that I was laying there and
my eyes were rolling back behind my head and when I was able to get a clear picture, I
got a clear picture I looked straight at him and he was laying in front of me jerking himself
off.” K.H. stated that while appellant engaged in the described activity, she was laying
down curled trying to catch [her] breath and just trying to, you know, get back to normal.”
K.H. said, “I knew that I wasn’t supposed to die there. After I had got myself
together and stopped hyperventilating, he turned me over and started—started having
sex in my anus all over again.” The prosecutor asked, “How many times did he sexually
assault you by putting his penis in your anus?” K.H. replied, “At least three, maybe four,
but three that I can think of.” K.H. stated that appellant put his penis in her vagina
“[m]aybe five” times. When asked how many times appellant sexually assaulted her, K.H.
stated she could not recall the exact number but estimated it occurred “maybe 10, 11,
times, maybe 12.” K.H. testified that she had not consented to any of the acts performed.
K.H. stated that she noticed that people started arriving at the location, which was
appellant’s business location, and appellant then told her he was taking her home. K.H.
said that appellant returned her cell phone and drove her back to her car. K.H. went
home, told her mother what happened, and her mother called the police.
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K.H. testified that she went to the hospital where a nurse examined her and that
she talked to a police officer regarding the incident. The sexual assault nurse examiner
who performed the examination of K.H. wrote in her report the following:
Patient states: “I was waiting outside my friend’s house. Some guy came up to mv car. He told me he was with the police and I should get out of the car. He had me put my hands on top of the car. He searched me. Then he put my hands behind me and told me to get in the car on the driver[’]s side. He got in after me. He started driving away and I grabbed for the door to unlock it. He grabbed me by my hair and shoved me underneath the dash on the passenger side. He grabbed my hands behind my back and wrapped them with a belt. He told me if I screamed he would stab me and kill me. He took me to this place. He blindfolded me and put a sheet or sack over my head. He was pushing me and I fell onto a bag of glass. He grabbed a bag of cocaine and stuck it in my face. I inhaled and my mouth got dry. He picked me up and put me on the bed, it was a futon. Then he started touching me on my arms, my legs, my stomach and my face. He said if I did everything he said he would take me back to my car. He started taking off my clo[thes]. He was kissing me on my neck and my face. He started rubbing cocaine on my nipples, inside my vagina and inside my rectum. He then started sticking something up my vagina. When he turned on the light I saw a dildo in his hand. He would put both the dildo and himself, his penis in my vagina and my rectum. It just continued over and over again. Finally everything was done and he gave me my clothes and then he dropped me off.”
The nurse noted in her report that there was “[n]o trauma” to K.H.’s labia majora,
labia minora, hymen, vagina, cervix, and perineum. However, the nurse noted that there
was a “1/2 cm red tear” to K.H.’s rectum “@ 12 o’clock.”
Police officer Gabriel Gutierrez testified that when he went to arrest appellant,
appellant fled from him and ran out of his business’s building to a nearby Whataburger.
Officer Gutierrez said he had informed appellant that he was a police officer and had
asked appellant to stop running; however, appellant continued running until Officer
Gutierrez tackled him and then tased him.
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Samantha Manning, a forensic scientist with the Texas Department of Public
Safety in the DNA section, testified that, although she found sperm, she did not find any
DNA belonging to appellant in the swab taken from K.H.’s vagina. Regarding the DNA
extract from the sperm cell fraction of the vaginal swab, Manning stated that there were
two components and that appellant had been “excluded” as the contributor of the major
component in this profile, which belonged to K.H., and the minor component was
“insufficient for comparison purposes,” meaning that she could not make a comparison to
anyone. Regarding the anal swab, the only DNA found by Manning belonged to K.H.
Manning found DNA belonging to appellant on K.H.’s panties. Manning testified that the
DNA found on two artificial phalluses found at the scene of the alleged aggravated assault
belonged to appellant and did not belong to K.H.
Finally, in a video interview with police officers, appellant admitted to having sex
with K.H. However, appellant claimed that K.H. had consented to the sexual acts.
B. The Jury Charge
The State indicted appellant for ten counts of aggravated sexual assault of K.H.
with all acts allegedly occurring on September 28, 2013. The State, however, abandoned
three counts and only seven counts were submitted to the jury in the charge. The jury
acquitted appellant of six counts and found him guilty of only count four. The indictment
on count four stated, in relevant part,
[Appellant] did then and there intentionally or knowingly cause the penetration of the anus of K.H., Pseudonym, by defendant’s sexual organ or an object unknown to the grand jury, without the consent of K.H., Pseudonym, and the defendant did then and there by acts or words threaten to cause or place K.H., Pseudonym, in fear that death or serious bodily injury would be imminently inflicted on K.H., Pseudonym, and said acts or words occurred in the presence of K.H., Pseudonym.
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The charge instructed the jury to find appellant guilty if it found beyond a reasonable doubt
that appellant intentionally or knowingly penetrated K.H.’s anus with his sexual organ,
without her consent and that appellant “did then and there by acts or words threaten to
cause or place K.H. . . . in fear that death or serious bodily injury would be imminently
inflicted on K.H. . . . and said acts or words occurred in the presence of K.H. . . . .”
The charge also included Count 7, Count 8, and Count 9. Counts 7 and 8
instructed the jury to find appellant guilty of aggravated sexual assault if the jury found
beyond a reasonable doubt that the defendant penetrated K.H.’s anus with his sexual
organ without her consent and “did then and there by acts or words threaten to cause or
place K.H. . . . in fear that death or serious bodily injury would be imminently inflicted on
K.H. . . . and said acts or words occurred in the presence of K.H. . . . .” Count 9 instructed
the jury to find appellant guilty if it found beyond a reasonable doubt that appellant
penetrated K.H.’s mouth with his sexual organ. Because the State had abandoned these
charges, the trial court instructed the jurors to put a cross/“X” over counts 7, 8, and 9, and
the judge put her initials next to each cross/”X”.
The charge included a general instruction that, to convict, the jury had to
unanimously find beyond a reasonable doubt that appellant committed the offense of
aggravated sexual assault. The charge did not include a specific instruction that, to
convict, the jury had to unanimously agree that appellant committed a particular act of
sexual assault. Appellant did not object to this omission.
C. Applicable Law
A jury’s verdict must be unanimous regarding the specific crime the defendant
committed. TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West,
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Westlaw through 2015 R.S.); Cosio, 353 S.W.3d at 771. The jury must “agree upon a
single and discrete incident that would constitute the commission of the offense charged.”
Cosio, 353 S.W.3d at page 771. “[N]on-unanimity may occur when the State charges
one offense and presents evidence that the defendant committed the charged offense on
multiple but separate occasions.” Id. at 772. And, “[e]ach of the multiple incidents
individually establishes a different offense or unit of prosecution.” Id. Therefore, “[t]he
judge’s charge, to ensure unanimity, would need to instruct the jury that its verdict must
be unanimous as to a single offense or unit of prosecution among those presented.” Id.
D. Discussion
As neither party has cited any case law directly on point, and we find none, we turn
to the law of election in our analysis of whether there is error in this case. Generally,
“where one act of intercourse is alleged in the indictment and more than one act of
intercourse is shown by the evidence in a sexual assault trial, the State must elect the act
upon which it would rely for conviction.” O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim.
App. 1988). The Texas Court of Criminal Appeals recognized in O’Neal, that in “single
count, multiple transaction cases, the State [is] required to elect which transaction (act of
intercourse) it would rely upon to prove that single offense,” and “[w]here the State fails
to elect at the resting of its case in chief, a defendant might find himself without notice as
to which of a multitude of acts he might be called upon to defend.” Id. at 772. However,
the Texas Court of Criminal Appeals has also recognized that “[a]n exception to the rule
is where several acts of intercourse were committed by one continuous act of force and
threats, and are part of the same criminal transaction.” Id. at 771. In a similar case, the
court stated, “It should be borne in mind that the evidence shows several acts of
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intercourse between [the appellant] and prosecutrix occurring in the same bed on the
same night. In such a case, no election is required.” Bethune v. State, 363 S.W.2d 462,
464 (Tex. Crim. App. 1962). In Phillips, the court stated that this exception “applies only
where the evidence shows that several acts of intercourse were committed by one
continuous act of force and threats that are “part and parcel of the same criminal
transaction.” Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006) (citing Steele
v. State, 523 S.W.2d 685 (Tex. Crim. App. 1975)). The court explained that, in a previous
case applying the exception, “two acts of intercourse occurred approximately two hours
and twenty miles apart” and those acts of intercourse constituted one continuous act of
force and threats. Id.
Here, K.H. testified that appellant put his penis in her anus without her consent,
and the SANE testified that she found an injury on K.H.’s anus. K.H. testified that on the
same night in the same bed in a span of approximately five hours, appellant penetrated
her anus with his penis at least two times without her consent. K.H. also stated that
appellant penetrated her anus on three times that she “could think of.” According to K.H.,
appellant put his penis in her anus without her consent, she became hysterical, appellant
removed his penis, and sometime during the encounter appellant put cocaine on her anus
and penetrated her anus again with his penis.
K.H.’s testimony supports a finding that appellant’s penal penetration of her anus
occurred during a continuous act of force or threats. The acts as described by K.H.
evidence part of a continuing plan of sexual abuse rather than distinct and separate acts.
The acts as described by K.H. occurred in the same place and during an interval of
approximately five hours. Therefore, we conclude that the penile penetrations of K.H.’s
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anus were so closely related that they form part of the same continuous course of conduct
toward the same victim. Thus, the trial court did not err in failing to give a unanimity
instruction.
Moreover, even assuming that each of these instances of anal penetration by
appellant’s penis constituted separate offenses, in Dixon v. State, the Texas Court of
Criminal Appeals in analyzing harm concerning the State’s failure to elect in a case where
a child testified to multiple instances of sexual assault in the same manner but on different
dates. 201 S.W.3d 731, 735 (Tex. Crim. App. 2006). The Dixon court “perceive[d] no
risk” of a non-unanimous verdict. Id. The court explained that “the only distinguishing
detail among the one hundred offenses is that one occurred during the day, while all the
others happened at night.” Id. The court stated that there is “no basis in the record for
the jury to believe that one incident occurred during the day but that none occurred at
night.” Id.
Here, K.H. had an injury to her anus, testified that appellant penetrated her anus
with his penis without her consent when he turned her over as she was gripping the floor
trying to reach for anything. K.H. testified that appellant also put cocaine on her anus and
then penetrated her anus once more with his penis without her consent. Here, the only
distinguishing detail between the two times K.H. specifically claimed that appellant
penetrated her anus without her consent is that the second penetration occurred later
than the first.1 Thus, we cannot conclude that there is any basis in the record for the jury
1 Although K.H. testified that appellant put cocaine on her anus the second time, we do not find this fact to be distinguishing because K.H. testified that she had orally ingested cocaine prior to the first anal penetration. Thus, we see no danger that the jury may have found that the cocaine on K.H.’s anus had any effect on her ability to consent to the sexual acts.
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to have believed that one incident of anal penetration occurred with K.H.’s consent and
the other did not, especially given that K.H. had an injury to her anus.
Accordingly, we conclude that no error exists under these specific facts. We
overrule appellant’s first issue.2
II. BRADY MATERIAL
By his second issue, appellant contends that the State did not timely disclose
Brady material. See Brady, 373 U.S. at 87. Specifically, appellant argues that the tape
of K.H.’s mother’s 911 call was not disclosed until during his trial. Appellant states that
“[t]he withheld evidence was favorable to him” and “there is an issue of whether the
evidence was material, that is, there is a reasonable probability that had the evidence
been disclosed, the outcome of the trial would have been different.” See id. However,
appellant has not explained what was said in the 911 tape that was favorable to him and
he has not explained why it was material and would have changed the outcome of trial.
See TEX. R. APP. P. 38.1(i).
Moreover, “[w]hen Brady material is disclosed at trial, the defendant’s failure either
to object to the admission of the evidence on this basis or to request a continuance waives
error ‘or at least indicates that the delay in receiving the evidence was not truly
prejudicial.’” Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston [1st Dist.] 2013,
no pet.) (quoting Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.–Houston [1st Dist.]
2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); see Fears v. State,
2 We note that if the State could prove two separate and distinct crimes, then it would have been correct to charge appellant with multiple acts of anal penetration. However, under these specific facts, K.H.’s testimony supports the State’s argument that the evidence showed that the anal penetration occurred during one continuous incident.
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479 S.W.3d 315, 327 n.7 (Tex. App.—Corpus Christi 2015, pet. ref’d) (holding that the
appellant waived Brady error, if any, by failing to request a continuance when the State
moved to introduce the complained-of evidence); Young v. State, 183 S.W.3d 699, 706
(Tex. App.—Tyler 2005, pet. ref’d) (“The failure to request [a continuance] waives any
Brady violation, as well as any violation of a discovery order.”). Here appellant’s trial
counsel did not object to the 911 tape on the basis of Brady when he learned of it and no
continuance was requested.3 Therefore, we conclude that appellant did not preserve his
Brady complaint for our review. See Perez, 414 S.W.3d at 790; see also Fears, 479
S.W.3d at 327 n.7; Young, 183 S.W.3d at 706.
In addition, withheld evidence must have been admissible in court before a
prosecutor has a duty to disclose it under Brady. Lagrone v. State, 942 S.W.2d 602, 615
(Tex. Crim. App. 1997) (providing that under Brady “the prosecution has no duty to turn
over evidence that would be inadmiss[i]ble at trial”); Ex parte Kimes, 872 S.W.2d 700,
703 (Tex. Crim. App. 1993) (“A prosecutor does not have a duty to turn over evidence
that would be inadmissible at trial.”); see also Ramos v. State, No. 13-03-00217-CR, 2005
WL 1981550, at *4 (Tex. App.—Corpus Christi Aug. 18, 2005, no pet.) (mem. op., not
designated for publication) (concluding that because the alleged Brady evidence was
inadmissible the prosecution had no duty under Brady to turn it over). Here, the 911 was
not admitted at trial. And when the trial court stated that it would be inclined to admit the
911 tape, appellant’s trial counsel objected on the basis that it constituted inadmissible
3 Appellant states that “the parties noted [to the trial court] that they had an agreement not to introduce the tape into evidence and that defense counsel was ‘not gonna argue it.’” And, appellant acknowledges that when the trial court asked his defense counsel to explain how late notice of the 911 harmed appellant, defense counsel stated that it “affected” his trial strategy.
hearsay. The prosecutor agreed with appellant’s trial counsel that the 911 tape was
inadmissible and stated that the State would not offer the 911 tape as evidence.
Accordingly, because appellant has not argued or shown on appeal that the 911 tape was
actually admissible at trial, appellant’s trial counsel objected to admission of the 911 tape
on the basis that it was inadmissible hearsay, and the trial court did not admit the 911
tape based on appellant’s trial counsel’s objection, we overrule appellant’s second issue.