Tapia, Valeriano Zermeno v. The State of Texas--Appeal from Crim Dist Ct 4 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

VALERIANO ZERMENO TAPIA,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00283-CR

Appeal from

Criminal District Court 4

of Dallas County, Texas

(TC# F-0030080-NK)

O P I N I O N

In this appeal of his sexual assault conviction, Valeriano Zermeno Tapia challenges the factual sufficiency on the element of consent and claims egregious harm to a portion of the court=s charge he failed to object to at trial. We will affirm.

I.

Appellant pled not guilty, but was convicted by a jury of sexual assault. The trial court assessed punishment at fifteen years= confinement plus a $1,000 fine.

The complainant dated appellant for about a month until she discovered he was married. After the breakup, appellant called her again and she went out with appellant and ended up at the home of appellant=s friend. There, complainant testified appellant tried to have sex with her three times, using force, hurting her. Although she struggled, pushed appellant away and asked to be let go, appellant continued his advances. Further facts will be developed in our sufficiency review.

II.

In determining the factual sufficiency of the elements of an offense, the reviewing court A>views all the evidence . . . in a neutral light, and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.=@ Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Id. We are authorized to disagree with the fact finder=s determination. Id. (citing Clewis, 922 S.W.2d at 133). This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense, asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11.

III.

We will review the evidence to determine if the element of consent, although adequate if taken alone, is outweighed by contrary proof (as argued by appellant). See id. The complainant dated appellant about a month until she discovered he was married. As a Catholic who did not believe in premarital sex, she did not have sex with appellant before the night in question. The two worked together at Poly America, where some saw them as friends, even, according to a defense witness, Atalking . . . like two people in love.@ On the other hand, complainant testified he bothered her at work. Sometime after they broke up, appellant called the complainant at a party. She agreed to meet him. The evidence then takes two further divergent paths.

The complainant testified that outside the party, appellant grabbed her and threw her in the truck. The complainant tried to get away but the truck door handle was broken. Appellant took her to a friend=s house that was darkened and she could not see or hear anyone in the house. Appellant moved a dresser with a TV in front of the door, pushed her onto the bed, and got on top of her. He held her hands, took off her clothes, tried to have sex with her, and she started to bleed. She pushed him with her hands, asked to be let go, told him she did not want to have sex with him, and struggled to get away from appellant. Appellant attempted sex with her two more times, caused her much pain, and she became too exhausted to prevent his penetration of her. The following afternoon, after appellant left, she walked around trying to figure out where she was until about seven o=clock that evening. Her sister picked her up on the street.

Through an interpreter, Canuto Campos directly contradicted the complainant about her demeanor and the use of his house. He testified the complainant was brought to his house, she looked Anormal@ and was hugging appellant. Campos=s wife and children were present and he asked appellant to block the door with the television because one of the children liked to go to the room where the sex occurred. Campos heard no noise coming from the bedroom during the night. The next morning the complainant looked normal and had not been crying. She was picked up that evening about 7 p.m. by her sister and two men. Their demeanor was normal.

Duve Tapia, wife of appellant, also testified for the defense and she observed two hickeys on appellant=s neck. She testified about a conversation with appellant, who recounted that he had run off with the complainant. Complainant had also testified that appellant called her mother from the truck and told complainant=s mother at one point the two were engaged and at another point that they were going to get married.

When the complainant left the Campos house, caught a ride, and went home, she complained of the assault to her sister and mother who called the police. The complainant was taken to two hospitals and a rape exam was conducted. The rape exam showed two bruises on her neck and a full thickness laceration of hymenal ring, which was bleeding. Dr. John Schorge testified the injury would have caused excruciating pain and was an obvious sign of forced entry. The policeman who interviewed the complainant at the hospital opined she was distraught, crying, and shaking. Complainant=s sister also corroborated the distress, that her sister was pale, weak, and had been crying a long time. A forensic biologist=s report indicated a component of sperm present following a vaginal smear test.

IV.

Sexual assault is without consent if the actor compels the other to submit or participate by the use of physical force or violence. Barnett v. State, 820 S.W.2d 240, 241 (Tex. App.--Corpus Christi 1991, pet. ref=d) (citing Hernandez v. State, 804 S.W.2d 168, 169 (Tex. App. Houston [14th Dist.] 1991, pet. ref=d)); Tex. Penal Code Ann. ' 22.011(b)(1) (Vernon 1994). Under this statute, the emphasis is upon the actor=s compulsion rather than the victim=s resistance. Wisdom v. State, 708 S.W.2d 840, 842 43 (Tex. Crim. App. 1986); Bannach v. State, 704 S.W.2d 331, 332 33 (Tex. App. Corpus Christi 1986, no pet.). The degree of physical resistance by a victim does not render the evidence insufficient to prove the lack of consent. Barnett, 820 S.W.2d at 240. The issue before us, then, is whether sufficient evidence exists to show that appellant compelled complainant=s submission by the use of actual force. Garcia v. State, 750 S.W.2d 922 (Tex. App. Corpus Christi 1988, no pet.); see also Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.--San Antonio 1999, no pet.) (degree of physical resistance by a victim does not render the evidence insufficient to prove the lack of consent).

We hold the evidence sufficient to show lack of consent due to actual force by appellant. The contrary evidence, by friends and relatives of appellant, is problematic. The complainant directly contradicts Campos, who also observed he did not want any trouble. Other testimony about a friendship, even courting between appellant and the complainant, does not greatly outweigh the complainant=s testimony, especially in the light of fresh complaints and corroborating physical evidence. Our evaluation of the evidence should not substantially intrude upon the fact finder=s role as the judge of the weight and credibility given to witness testimony. Jones, 944 S.W.2d at 648. Appellant=s first issue is overruled.

V.

In his second issue, appellant complains of the court=s charge for the first time on appeal. No objection was lodged to the trial court. Accordingly, to constitute reversible error, there must be a showing of egregious harm sufficient to deny appellant a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Appellant, with no citation to the record, argues generally that the court=s charge does not contain all three conduct elements under section 6.03 of the Penal Code.[1] He complains the jury charge defines intent and knowledge with respect to the result of appellant=s conduct only. Appellant argues: AIn the instant offense the result of Appellant=s conduct, causing penetration of [complainant=s] sexual organ, combined with the nature of his conduct, by means of his penis, does not constitute a crime.@ Only when combined with the circumstances surrounding the conduct of the complainant=s lack of consent is a crime committed. Appellant further argues he could be convicted without regard to his culpable mental state, thus lowering the State=s burden. We disagree.

The court=s charge included definitions of Aintentionally@ and Aknowingly@ but set forth only the conduct element, e.g., AA person acts knowingly, or with knowledge, with respect to a result of his conduct, when he is aware that his conduct is reasonably certain to cause the result.@ Section 6.03 of the Texas Penal Code defines the mental state Aknowingly@ as follows:

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Tex. Penal Code Ann. ' 6.03(b) (Vernon 1994). The charge also defined consent. A>Consent= means assent in fact, whether express or apparent.@

The application portion of the charge provided Athat one VALERIANO ZERMENO TAPIA, defendant, did unlawfully then and there, intentionally or knowingly cause penetration of the female sexual organ of [complainant] . . . without the consent of [complainant], by means of an object, to-wit: the sexual organ, of defendant . . . .@ Thus we cannot agree with appellant that the State=s burden was lessened.

When an offense is not clearly categorized as either a Aresult@ or Anature of conduct@ type offense, it is not error for the trial court to submit the statutory definitions of Aintentionally@ and Aknowingly@ because both definitions allow the jury to consider the nature of a offender=s conduct or the results of his conduct. Bosier v. State, 771 S.W.2d 221, 225 (Tex. App. Houston [1st Dist.] 1989, pet. ref=d). It follows then that when an offense is both a Aresult@ and a Anature of the conduct@ type offense that the trial court should submit the complete statutory definitions of Aintentionally@ and Aknowingly@ so that the jury can consider both the result of an offender=s conduct and the nature of his conduct. Saldivar v. State, 783 S.W.2d 265, 267-68 (Tex. App.--Corpus Christi 1989, no pet.). Similarly, when an offense is only a Aresult@ or a Anature of the conduct@ type offense, the court should submit statutory definitions of Aintentionally@ or Aknowingly@ which are limited to the respective culpable mental state required. Id. at 268. This, the charge accomplished.

We also note here the mental state Aknowingly@ or Awith knowledge,@ as it relates to the appellant=s action with respect to the nature of his conduct or the existing circumstances is not substantially different from the common usage and understanding of those terms. See Mathis v. State, 858 S.W.2d 621, 622 (Tex. App.--Fort Worth 1993, pet. ref=d). In this case, it constituted a requirement that the State prove that appellant intentionally or knowingly caused penetration of complainant without her consent. See id. The application paragraph required the jury to so find beyond a reasonable doubt before it could return a guilty verdict against appellant. Consequently, we hold that appellant suffered no egregious harm as a result of any omission of the full definition of Aknowingly@ or Awith knowledge.@ Id. This is particularly true when the central dispute was between the credibility of the respective witnesses.[2]

Finally, as noted by the State, how could the charge limit each conduct element, when all the conduct elements were not present? Appellant argues, in part, a hypothetical error to a hypothetical charge. Errors which result in egregious harm are those which affect A>the very basis of the case,=@ deprive the defendant of a A>valuable right,=@ or A>vitally affect [a] defensive theory.=@ Almanza, 686 S.W.2d at 172. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

DON WITTIG, Justice

October 3, 2002

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1]Appellant also fails to cite to specific code sections, effective dates of statutes, and does not favor us with pin cites to his argued authority.

[2]Even appellant=s sufficiency argument points out that the real dispute was not scienter of the appellant, but the use of force causing non-consent of the complainant.