Shawn E. Williams v. The State of Texas--Appeal from 184th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-214-CR

SHAWN E. WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 184th District Court

Harris County, Texas

Trial Court # 648,077

O P I N I O N

Appellant was charged by a three-count indictment with the offenses of aggravated kidnapping, aggravated sexual assault, and aggravated robbery. However, the State dismissed the aggravated robbery charge before trial, and Appellant was arraigned only on the aggravated kidnapping and aggravated sexual assault charges. He pled "not guilty," and both sides proceeded to trial before a jury.

After hearing the evidence, the jury found Appellant guilty on both counts. The jury assessed punishment for the aggravated kidnapping conviction at fifty-years incarceration, and eighty-five years for the aggravated sexual assault conviction.

Kasandra Carter was a student at Hastings High School. At 5:30 a.m. on February 21, 1992, Kasandra was waiting at the intersection of Benmar and Carl to catch the bus for school. A brown station wagon pulled up to the curb, and a lady, later identified as Tammy Williams, asked Kasandra if she wanted a ride. Kasandra said "no," but two men jumped out of the back seat and forced her into the car. One man covered her eyes with his hands, so she was unable to see their faces.

Kasandra was in the back seat of the car with Appellant and Carl Harris, while Tammy Williams drove the vehicle. One of the men put a ski mask on her face, and then removed her shoes, socks, jacket, and shirt. As both men fondled Kasandra, Appellant told her that her "world was over," and that her body would be found in a bayou. Kasandra believed that they were going to kill her.

Eventually, the car stopped, and the men order Kasandra to get dressed. They pulled the hood of her jacket over her head, then took her into an apartment. Once inside, they again made her remove her clothes, and they wiped her body with a towel. Then, they forced Kasandra to lie on the floor while they covered her with lotion.

While Carl Harris tried to have sexual intercourse with Kasandra, Appellant ordered her to perform oral sex. Kasandra was afraid they were going to hurt her, and complied with all their demands. After several unsuccessful attempts, Carl finally was able to put his penis inside Kasandra's vagina.

Next, Tammy Williams ordered Kasandra to perform oral sex on her. After Tammy reached orgasm, Appellant told Kasandra to suck his penis again. Then, Tammy and Appellant laid Kasandra on the bed, and they straddled her while having sexual intercourse, and while forcing Kasandra to lick Appellant's scrotum. Finally, Kasandra testified, Appellant "had sex" with her (Kasandra).

Tammy Williams took Kasandra into the bathroom and told her to bathe and clean her vagina especially well. Kasandra bathed, then Tammy took her back into the bedroom and put her on the bed. She kissed and fondled Kasandra, and again ordered Kasandra to perform oral sex on her. Tammy then told her to rest, and left her alone in the bedroom.

Tammy later returned to the bedroom and tied Kasandra's hands and feet with stockings. Tammy put her in the closet and told her to be quiet. She promised Kasandra that she could go home soon if she was good.

Carl, Tammy, and Appellant removed Kasandra from the closet about an hour later. Carl asked Kasandra several questions about where she worked and went to school. Although Kasandra answered his questions as well as she could, Appellant seemed dissatisfied with her responses. He said, "Aren't you supposed to be entertaining us. Damn you [sic] getting on my nerves. You must not want to live." They ordered Kasandra to get on top of Carl and have intercourse with him again. Kasandra complied, but Tammy Williams continually hit her on the back with a belt. Tammy then made Kasandra perform oral sex on Carl, while she and Appellant went into the bathroom and had sexual intercourse.

Tammy was bleeding when she and Appellant returned to the bedroom fifteen minutes later. She blamed Kasandra, and accused her of having a disease. Appellant and Tammy hit Kasandra in the face and chest and threw her against the wall. They tied her up again, and Appellant said, "Everything around you has been destroyed. Your world in over." Appellant and Carl put Kasandra back into the bathtub, then Appellant and Tammy left the apartment. They ordered Carl to watch her.

Carl told Kasandra that he would release her if she promised not to tell anyone what had happened. He then took the mask off of her for the first time, and she was able to see his face. He gave her some clothes, and told her how to get home. Kasandra thanked Carl and ran out of the apartment.

Kasandra tried to stop two cars, but no one would help her. Eventually, she stopped a lady and told her that she had been raped. The lady took her to the apartment-manager's office. Diane Jenkins is the manager of the Woodgate Apartments at 103 Goodson. She was working on the afternoon of February 21, 1992, when a resident brought Kasandra into the office. She was disheveled and hysterical, but she told Ms. Jenkins that she did not want to notify the police. She was afraid her assailants were going to kill her. Ms. Jenkins knew that she had to call the police, so she left the office to make the call from another phone. However, she saw a patrol car driving past the complex, so she flagged down the officers and told them about Kasandra.

Houston Police Officer David Hibert went into the office to talk to Kasandra, and found that she was hysterical. He was unable to calm her down for several minutes. Finally, Kasandra agreed to take him to the apartment where she had been assaulted. She walked out of the manager's office with Officer Hibert, but saw Carl Harris standing in the parking lot and immediately ran back inside. She told the officer who she had seen, so Officer Hibert approached Carl and asked him to come into the office. Kasandra identified Carl. Furthermore, Officer Hibert searched Carl and found Kasandra's keys and identification in his possession.

Charles Solomon lived in the Woodgate Apartments on February 21, 1992. He was sitting at his kitchen table that afternoon, when a frightened woman knocked on his door. Although Mr. Solomon had never seen the woman before, he later learned that she was Tammy Williams. Tammy asked Mr. Solomon if she could hide in his apartment. He let her in, but noticed that there were several police officers at the manager's office. He therefore went to investigate. On his way to the front of the complex, Mr. Solomon saw Appellant and told him that his wife was looking for him, and that she was hiding in his apartment. They took Appellant back to his apartment, then headed back toward the front of the building.

Mr. Solomon talked to Officer Redefo Madrid, then agreed to take him back to his apartment. Officer Madrid entered the apartment and found Appellant and Tammy Williams inside. He ordered them out, handcuffed them, and drove them back to the manager's office.

Kasandra had not seen Appellant's face during the assault, because her eyes had been covered by the ski mask. However, she had seen his shorts and shoes and was able to describe them to police. She also remembered Appellant's distinctive voice. After Appellant was apprehended, Officer Ralph Walker asked Kasandra to stand near the patrol car while he talked to Appellant to see if she recognized the voice. Kasandra positively identified Appellant based upon voice recognition.

Appellant comes to this court on three points of error. We overrule all of Appellant's points and contentions and affirm the trial court's judgment.

By his first point Appellant asserts the evidence is insufficient to support his conviction for aggravated sexual assault. In reviewing the sufficiency of the evidence to support a conviction, an appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313-319 (1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989).

Stripped of its formal parts, the indictment alleged that Appellant caused the penetration of the female sexual organ of Kasandra H. Carter by placing his sexual organ in the female sexual organ of the complainant. The trial court's charge to the jury tracked the language of the indictment. Appellant contends that the State failed to prove he penetrated Kasandra's sexual organ with his sexual organ. He argues that Kasandra testified only that Appellant penetrated her, but did not specify that Appellant used his penis to do so. However, in addition to the various sexual acts Appellant committed against Kasandra, the record also indicates that Carl Harris sexually assaulted her. In fact, Kasandra testified that she was forced to engage in sexual intercourse with Carl twice, and she specifically stated that he placed his penis inside her vagina.

The prosecutor objected to the jury instructions and twice requested the trial court to include a charge on the law of parties, but the trial court refused to do so. Yet, the evidence clearly reveals that Appellant was a party to the offenses committed by both Carl Harris and Tammy Williams. Tex. Penal Code, Sec. 7.02(a)(2). In determining whether a defendant was a party to an offense, the events occurring before, during, and after the offense may be considered. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). A reading of the entire record clearly reveals that Appellant, Carl Harris, and Tammy Williams acted together with a common purpose: to force Kasandra into submitting to a wide variety of sexual acts with each of them over a prolonged period of time. They each aided and assisted in the commission of the other's sexual assaults on Kasandra, and thus were parties to those actions. The trial court therefore improperly denied the State's request for a charge on the law of parties.

Where, as here, the State does object to an improper charge, the State's burden is not increased, and the sufficiency of the evidence is measured against the charge as it should have been submitted. Moreno v. State, 872 S.W.2d 1 (Tex. App. Houston [1st Dist.] 1993).

Appellant was a party to the offenses committed by both Carl Harris and Tammy Williams, and the State should have received a charge on the law of parties as the State's attorney requested. Moreover, Kasandra clearly testified that Carl Harris penetrated her vagina with his penis. Therefore, whether Appellant also penetrated Kasandra's vagina with his penis is irrelevant. Appellant is guilty under the law of parties. Appellant's first point of error is overruled.

In his next two points of error, Appellant claims he received ineffective assistance of counsel at trial. He argues that a number of omissions were made by his trial attorney, and contends that his case was prejudiced by these alleged deficiencies.

The United States Supreme Court created a two-prong standard for measuring ineffective assistance of counsel under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The standard requires a showing that trial counsel's performance was deficient and that said deficiency prejudiced the accused. Counsel is ineffective if his errors deprived a defendant of a fair trial.

The issue of ineffectiveness is decided by reviewing the totality of the circumstances and the representation throughout the trial.

Appellant claims in his second point of error that his trial attorney was ineffective because he failed to request a jury charge on the law regarding accomplice-witness testimony. Here Tammy Williams was clearly an accomplice and she testified for the State. Appellant is correct when he says an accomplice charge is required where the evidence, as here, clearly shows that a witness is an accomplice.

However, error in failing to charge that a witness was an accomplice as a matter of law, or as a matter of fact, is harmless where there is sufficient evidence to corroborate the accomplice-witness's testimony. Ashford v. State, 833 S.W.2d 660, 665 (Tex. App. Houston [1st Dist.] 1992, no pet.).

In the case at bar, the evidence corroborating the accomplice's testimony was overwhelming; therefore, the failure to include a jury instruction on accomplice-witness testimony is harmless. Appellant has not met the second prong of the Strickland test by showing he was prejudiced by his trial attorney's alleged deficiency. We overrule Appellant's second point of error.

The same reasoning applies to Appellant's third point of error. Appellant cites a number of omissions that he claims resulted in deficient representation at trial.

The record reflects that Appellant's trial attorney was prepared, familiar with the facts of the case, and understood the interrelationships of the witnesses. He conducted an extensive voir dire, vigorously cross-examined the State's witnesses and raised pertinent and often valid objections during the State's examination of the witnesses and closing argument. Therefore, any alleged errors on his part do not render the totality of counsel's representation ineffective. Moreover, even if this court should find that trial counsel rendered ineffective assistance, Appellant has failed to meet the second prong of the Strickland test. Here, there was overwhelming evidence of guilt, and the nature of the crime warrants an eighty-five-year sentence for aggravated sexual assault and a fifty-year sentence for aggravated kidnapping. Appellant's third point of error is overruled.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Affirmed

Opinion delivered and filed January 11, 1995

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