Jeffery, Elijah Eugene v. The State of Texas--Appeal from 109th District Court of Winkler County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

ELIJAH EUGENE JEFFERY, ) No. 08-01-00060-CR

)

Appellant, ) Appeal from

)

v. ) 109th District Court

)

THE STATE OF TEXAS, ) of Winkler County, Texas

)

Appellee. ) (TC# 4297)

O P I N I O N

Elijah Eugene Jeffery appeals his conviction for the offense of aggravated sexual assault. A jury found Appellant guilty and assessed his punishment at imprisonment for a term of twenty years. The trial court entered in the judgment an affirmative finding on the use of a deadly weapon. Tex.Code Crim.Proc.Ann. art. 42.12, ' 3g(a)(2)(Vernon Supp. 2002). We affirm.

FACTUAL SUMMARY

 

Sherri Rice and her boyfriend, Marti Beebe, were in bed asleep when Appellant and another friend came to their house. Beebe got up and went to a bar with the others but Rice refused to go with them, and instead, stayed in bed. At around midnight, Rice heard someone come into the house. Believing Beebe had returned home, she sat up in the bed and looked towards the bedroom door which was illuminated by the light from the bathroom. She saw Appellant turn off the light before coming into the bedroom. Appellant got on top of Rice and began choking her. When she tried to scream, he clamped his hand across her mouth. Rice bit Appellant=s finger and fought back for some time. She eventually succeeded in partially breaking away from him, but Appellant repeatedly hit her in the back until she urinated in the bed and Ablacked out.@ Rice described herself as being conscious but in shock. Appellant then removed Rice=s panties and began sexually assaulting her. During this assault, Rice felt a gun under her leg and hid it under the covers because she feared Appellant would kill her. When Appellant got off of her, he began looking for the gun. Rice tried to escape but Appellant grabbed her. They continued to fight and struggled over the gun, falling onto the floor. During this struggle, Rice noticed that part of the weapon, perhaps the handgrip, had broken. Appellant attempted to point the weapon at Rice so she put her finger into the trigger in an effort to prevent him from firing it. Appellant suddenly got up and ran out of the bedroom with the gun. Rice believed he had heard a noise and became frightened that Beebe had returned.

Rice hid in the closet for a while, but eventually grabbed a blanket and escaped through a window. Clothed only with the blanket, she went to a neighbor=s home and screamed for help. One of the neighbors went outside and told her that Beebe had just come home. Rice ran back into the house and attempted to call 911. Beebe, who was extremely intoxicated and did not know what had happened or why Rice was calling the police, believed he would be arrested for public intoxication and he took the phone away from her. The neighbors, however, successfully called the police and they arrived in a short time.

 

Ron Hoge, a Kermit police officer, arrived at the scene and found Rice sitting on a sidewalk, hysterical and crying. She cowered under a blanket and repeatedly stated, A[H]e raped me.@ Hoge observed scrapes on Rice=s face and throat and he noticed that she was spitting blood onto the sidewalk. An ambulance transported Rice to a hospital where she was examined and treated. She had a cut inside of her mouth, and numerous scrapes and bruises on her face, throat, breasts, shoulders, upper legs, knee, and back. At the hospital, Rice became somewhat calmer and Hoge was able to obtain a written statement from her.[1] She identified Appellant as her assailant and told Hoge that he had used a gun during the assault. A doctor at the hospital performed a rape examination and Hoge submitted the evidence to a laboratory along with DNA specimens obtained from Appellant. Police investigated the scene at Rice=s home and recovered evidence, including photographs of a large spot on the bed which appeared to be urine, but they did not find a weapon. They also obtained a search warrant for Appellant=s residence. During the execution of the warrant, officers found a CO2 operated pellet pistol hidden inside of an abandoned stove outside of the residence. The pistol looked remarkably similar to a semi-automatic weapon and its left handgrip was missing.

The morning following the assault, Rice looked under her bed and found the CO2 capsule and the left handgrip from the gun Appellant had used during the sexual assault. She immediately called the police and turned the items over to them. The handgrip matched the weapon recovered from Appellant=s home. In addition to Rice=s testimony, other evidence connected Appellant to the assault. Consistent with Rice=s testimony that she had bitten Appellant, photographs of Appellant=s hands and fingers showed abrasions. Further, the vaginal swabs taken from Rice tested positive for the presence of semen, and the DNA found in that semen matched Appellant=s DNA.

 

Appellant was indicted for aggravated sexual assault. Through cross-examination, Appellant offered the defensive theories that Rice had engaged in consensual intercourse with Appellant and Beebe assaulted her when he returned home. The defense could not explain, however, the presence of the pellet pistol=s handgrip underneath the bed. The jury found Appellant guilty as charged in the indictment.

SUFFICIENCY OF THE EVIDENCE

Appellant raises two issues related to the deadly weapon element of the offense and the deadly weapon finding. In Issue One, Appellant challenges the legal and factual sufficiency of the evidence to support the jury=s determination that he exhibited a firearm during the offense. In Issue Two, he contests the legal and factual sufficiency of the evidence to show that the pellet pistol is, in fact, a deadly weapon.

Standards of Review

 

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewisv. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Elements of Aggravated Sexual Assault

 

A person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration of the female sexual organ of another person by any means without that person=s consent, and if the person uses or exhibits a deadly weapon in the course of the same criminal episode. Tex.Pen.Code Ann. ' 22.021(a)(1)(A)(i) and (a)(2)(A)(iv)(Vernon Supp. 2002). An aggravated sexual assault is without the other person=s consent if the offense occurs under the same circumstances listed in Section 22.011(b) of the Texas Penal Code. Pertinent to this case, consent does not exist where the actor compels the other person to submit or participate by the use of physical force or violence. Tex.Pen.Code Ann. ' 22.011(b)(1).

The indictment alleged that Appellant:

[W]ithout the consent of Sherri Dianne Rice, a female, did intentionally and knowingly cause the penetration of the female sexual organ of Sherri Dianne Rice by inserting his, the defendant=s sexual organ in said female sexual organ and the defendant did then and there intentionally and knowingly compel Sherri Diane Rice to submit to his said act of penetration by then and there exhibiting a firearm, to wit, a gun, same being a deadly weapon.

 

It is apparent that the indictment attempted to allege aggravated sexual assault pursuant to Sections 22.021(a)(1)(A)(i) and (a)(2)(A)(iv). However, the indictment is confusing in that it did not allege one of the statutory bases found in Section 22.011(b) for showing an absence of consent. Instead, it combines portions of the consent element (compelled the victim to submit) and the aggravating element found in subsection (2)(A)(iv)(by exhibiting a firearm). The jury charge generally instructed the jury, consistent with Section 22.011(b)(1), that aggravated sexual assault is without the consent of the victim if the actor compelled the other person to submit or participate by the use of physical force or violence. The application paragraph did not apply the latter instruction to the facts.[2] Despite these errors in the indictment and the jury charge, we measure the sufficiency of the evidence by a hypothetically correct charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).

Exhibition of a Firearm

Appellant first argues that the evidence is legally insufficient to show that he exhibited a deadly weapon during the offense because Rice testified she never saw a gun.[3] He also complains that Rice unequivocally stated that Appellant did not exhibit a firearm until after he had sexually assaulted her. These arguments pertain to the aggravating element found in Section 22.021(a)(2)(A)(iv).

Although the statute permits the State to prove that the defendant either used or exhibited a deadly weapon, the indictment alleged only that Appellant exhibited a deadly weapon in the course of the criminal episode. It is well established that Ause@ and Aexhibit@ are not synonymous and each word is exemplary of different types of conduct. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App. 1989). For our purposes, a defendant uses a deadly weapon in the course of a criminal episode if he employs or utilizes the weapon in order to achieve the purpose of the criminal episode. See Patterson, 769 S.W.2d at 941 (defining use in terms of Article 42.12, ' 3g which requires proof that the defendant used a deadly weapon Aduring the commission of the offense@). The term Ause@ encompasses mere possession if the possession facilitates the associated offense. Id. A defendant exhibits a deadly weapon if he consciously shows or displays the weapon in the course of the criminal episode. See id.

 

Because Rice did not Asee@ the weapon, Appellant argues that he could not have displayed it. Appellant is correct that Rice stated she did not see the gun. However, she did not make the statement in the sense that Appellant did not have a gun but rather that she could not visually observe it since the offense took place at around midnight in an unlit room. She repeatedly and consistently testified that she felt the gun under her leg and she hid it beneath the covers. Further, her testimony that Appellant possessed a gun is corroborated by the physical evidence. Police matched pieces of a gun she found beneath her bed with a gun later recovered from Appellant=s residence. Rice also stated that she felt the gun with her hands as they struggled over it and Appellant attempted to point it at her. From these facts, a jury could have found beyond a reasonable doubt that Appellant exhibited the weapon. Therefore, the evidence is legally sufficient.

In his factual sufficiency argument, Appellant contends that Rice=s testimony is inconsistent and contradictory regarding exhibition of the weapon. We do not necessarily agree with Appellant=s characterization of her testimony but even if we did, it was up to the jury to resolve any inconsistency in it. In so doing, the jury could have taken into account the physical evidence which supported Rice=s testimony on many key matters contested by Appellant, including Appellant=s possession of a weapon. Therefore, we find the evidence factually sufficient to support the jury=s determination on this issue.

 

With his second argument, Appellant alleges that the State must prove that he exhibited the firearm prior to or during the commission of the sexual assault. Under a hypothetically correct charge, the State was required to prove that Appellant exhibited a firearm in the course of the same criminal episode. The phrase Ain the course of the same criminal episode@ is not defined in the context of Section 22.021, but it certainly means something different than Aduring the commission of the offense.@ See Johnson v. State, 777 S.W.2d 421, 423 (Tex.Crim.App. 1989)(construing Article 42.12, ' 3g and distinguishing the phrase Ain the course of the same criminal episode@ from Aduring the commission of the offense@). The phrase Asame criminal episode@ involves the entire course of conduct, a broader concept than Aduring the commission of the offense.@ See id. Accordingly, we hold that the State is not restricted to proving that the defendant exhibited the deadly weapon prior to the commission of the offense but rather is permitted to prove that the exhibition occurred prior to, during, or following the commission of the offense so long as it occurred during the same course of conduct.

In both his legal and factual sufficiency challenge, Appellant points to Rice=s Auncontradicted@ testimony that she did not discover the weapon until after the sexual assault had been completed. Our review of the evidence, under either the legal or factual sufficiency standard, shows that it is not entirely clear whether Rice felt the gun under her leg during the initial physical attack or after Appellant had begun sexually assaulting her. However, either scenario occurred in the course of the same criminal episode. Likewise, the exhibition of the deadly weapon during the continued assault following his sexual assault of Rice is also legally and factually sufficient to show that he exhibited the weapon in the course of the same criminal episode.

Consent

 

Appellant next complains that because Rice did not notice the gun until after Appellant had sexually assaulted her, he could not have compelled her submission by exhibiting a firearm. Under a hypothetically correct charge, the State was not required to prove that Appellant compelled Rice to submit by exhibiting the weapon prior to the sexual assault. Instead, it had to prove that he compelled her to submit by the use of physical force or violence. Without repeating the evidence stated in the factual summary or the above discussion of the facts under the legal and factual sufficiency standards, the State proved this element by more than sufficient evidence. For these reasons, Issue One is overruled.

Deadly Weapon

In Issue Two, Appellant challenges the legal and factual sufficiency of the evidence to show that the pellet gun is a deadly weapon. A sexual assault becomes an aggravated sexual assault if the defendant uses or exhibits a deadly weapon in the course of the same criminal conduct. Tex.Pen.Code Ann. ' 22.021(a)(2)(A)(iv). ADeadly weapon@ means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex.Pen.Code Ann. ' 1.07(17)(Vernon 1994). The definition of firearm is found in Chapter 46 of the Penal Code:

>Firearm= means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

Tex.Pen.Code Ann. ' 46.01(3)(Vernon Supp. 2002).

 

The indictment alleged that the pellet gun is a firearm. The jury charge tracked the definition found in both subsections of Section 1.07(17), but it excluded the term Afirearm@ from its definition. The evidence showed that the gun possessed by Appellant during the offense was a CO2 pellet gun. Such a weapon is not a firearm because it uses compressed air, not the energy from an explosion or burning substance, to discharge the projectile. Mosley v. State, 545 S.W.2d 144, 145 (Tex.Crim.App. 1977). Further, Officer Hoge provided his expert opinion at trial that a CO2 pellet gun is not manifestly designed or made for the purpose of inflicting death or serious bodily injury. Therefore, if the State did not establish that the pellet gun, in the manner of its use or intended use, is capable of causing death or serious bodily injury, then we must sustain Appellant=s argument.

In McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000), the Court of Criminal Appeals addressed whether a butcher knife carried in the defendant=s pocket during a violent attack on the victim was a deadly weapon under the definition provided in Section 1.07(17)(B). The court pointed out that a key word in the definition is that the weapon be capable of causing death or serious bodily injury. McCain, 22 S.W.3d at 503. Thus, the mere carrying of a butcher knife in the defendant=s back pocket during the violent assault was legally sufficient to support the jury=s finding that the intended use for the knife was that it be capable of causing death or serious bodily injury. Id.

 

Appellant asserts that the pellet gun is not a deadly weapon under Section 1.07(17)(B) because the evidence did not show it was loaded. In other words, he argues that the weapon was not capable of causing death or serious bodily injury. The Court of Criminal Appeals recently addressed the same argument in Adame v. State, 69 S.W.3d 581 (Tex.Crim.App. 2002). There, the defendant entered a convenience store with a B.B. gun concealed under his sweatshirt. The store clerk feared for her life when the defendant pointed the B.B. gun at her and demanded money. A police investigator testified that the B.B. gun could cause serious bodily injury if it were pointed and fired at someone. In its charge, the trial court provided the definition of deadly weapon found in Section 1.07(17)(B) and the jury found that the defendant had exhibited a deadly weapon, a B.B. gun, in the commission of the offense. The court of appeals reversed, finding the evidence legally insufficient because the evidence did not show whether the B.B. gun was loaded or unloaded. See Adame v. State, 37 S.W.3d 141, 143 (Tex.App.--Waco 2001). However, the Court of Criminal Appeals found the evidence sufficient because a police officer testified that the B.B. gun was capable of causing serious bodily injury if pointed and fired at someone. Adame, 69 S.W.3d at 582. Therefore, it was unnecessary for the State to show that the B.B. gun was loaded. Id. The State needed only to show that the weapon used was capable of causing serious bodily injury or death in its use or intended use. Id.

In this case, Appellant elicited testimony from Officer Hoge regarding the capability of a CO2 pellet gun to cause serious bodily injury:

[Appellant=s counsel]: A BB gun, a pellet gun. Is it capable of causing serious bodily injury or death?

[Officer Hoge]: It depends where you hit somebody with the BB. It could put out an eye or --

[Appellant=s counsel]: Is it designed -- is it manifestly designed and made for death for the purpose of inflicting death or serious bodily injury, in your opinion?

[Officer Hoge]: No, sir.

On re-direct, the State followed up with this exchange:

[The Prosecutor]: Okay. Even though that it was uncapable [sic] of shooting an actual bullet, that actual gun would be capable of causing the loss or serious use -- serious lack of use of an organ such as an eye, wouldn=t it?

[Officer Hoge]: Yes, sir.

[The Prosecutor]: And properly fired could even penetrate or damage other organs of the body, couldn=t it?

[Officer Hoge]: Possibly, yes, sir.

 

Similar to the evidence in Adame, Rice testified that Appellant attempted to point the gun at her as they struggled over the weapon. When the evidence regarding the capability of the gun to cause serious bodily injury is considered in combination with other evidence showing that Appellant carried the weapon with him into Rice=s home and attempted to point it at Rice during the assault, a rational jury could find beyond a reasonable doubt that Appellant intended to use it in a manner capable of causing serious bodily injury. Accordingly, the evidence is legally sufficient. Viewing all the evidence as required in a factual sufficiency review, the evidence is not so weak that the jury=s deadly weapon finding is contrary to the overwhelming weight of the evidence. We overrule Issue Two and affirm the judgment of the trial court.

June 27, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

 

[1] A few days after the assault, Rice gave a second more detailed written statement.

[2] Appellant did not object to this deficiency in the charge at trial and he does not raise a contention regarding it on appeal, nor does he challenge the sufficiency of the evidence regarding the consent element.

[3] In making this argument, Appellant also points to perceived inconsistencies in Rice=s testimony. We are unable to review these assertions in the context of a legal sufficiency review.