TODD RANDALL MCDANIEL, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 30, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00631-CR
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TODD RANDALL MCDANIEL, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F87-87918-LU
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O P I N I O N
Before Justices Whitham, Baker, and Ovard
Opinion By Justice Baker
        Todd Randall McDaniel appeals his conviction for sexual assault. In four points of error, he contends: (1) the trial court erred in failing to submit his timely requested special instruction and charge on consent; (2) the trial court erred in failing to submit his timely requested special instruction on "totality of the circumstances"; (3) the indictment, as amended, failed to allege an offense; and (4) the indictment, as amended, failed to state an offense in plain and intelligible words. We overrule these points and affirm the trial court's judgment.
Appellant was charged with sexually assaulting the complaining witness. The issue of consent was hotly contested. After both sides had closed at the guilt/innocence stage of the trial, appellant requested an affirmative instruction and charge on consent. The trial court denied the request and submitted the jury charge based upon the statutory elements of the offense.
        Appellant recognizes that under most circumstances the court is not required to submit an affirmative instruction or charge on consent of the complaining witness. This is because lack of consent is an element of the offense of sexual assault, and a converse or negative charge is not required. See Moon v. State, 607 S.W.2d 569, 570 (Tex. Crim. App. 1980); Mills v. State, 626 S.W.2d 583, 585 (Tex. App.--Amarillo 1981, pet. ref'd). However, appellant argues that in a case where there is direct evidence of consent by the complaining witness, an instruction and charge on consent should be submitted if requested by the defendant. He argues that the State introduced direct evidence of lack of consent and he introduced direct evidence of consent. He asserts that he is entitled to the converse charge on consent. We disagree.
        Even under the circumstances which exist here, the denial of a defendant's requested instruction is not error where the requested instruction is merely an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State's case. Moon v. State, 607 S.W.2d at 570; Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App. 1978). Lack of consent to the sexual intercourse in a sexual assault case is an essential element of the State's case. Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon 1989). The trial court properly charged the jury on the offense of sexual assault and on the State's burden of proof. We overrule point number one.
        In his second point of error, appellant contends that the trial court erred by failing to submit his timely requested special instruction on "totality of the circumstances." Appellant asserts that the major issue in the trial was consent or lack of it. He argues that the use of force or violence was therefore an issue and was raised by the evidence. He contends that he is entitled to a jury instruction on "the totality of the circumstances" standard set forth in Brown v. State, 576 S.W.2d 820 (Tex. Crim. App. 1978). The "totality of the circumstances" standard enunciated in Brown refers not, as asserted by appellant, to a jury instruction requirement, but to the traditional emphasis on the consideration of the factual circumstances in determining whether consent on the part of the female has been given. See Brown, 576 S.W.2d at 823. That is to say, totality of the circumstances involves the standard the reviewing court uses in determining the sufficiency of the evidence to support a finding of lack of consent or use of force. We overrule point number two.
        In his third point of error, appellant contends the indictment, as amended, failed to allege an offense. The indictment, as amended, in pertinent part provides:
        . . . then and there knowingly and intentionally caused the penetration of the female sexual organ of A. B. hereinafter called the complainant, a person not the spouse of the defendant, without the consent of the complainant to wit: the actor compelled A. B. to submit or participate by the use of physical force and violence by means of an object to wit the sexual organ of Todd Randall McDaniel.
Appellant argues that the amended indictment is fundamentally defective because it fails to allege the means appellant used to cause the penetration of the female sex organ of the complaining witness.
        Initially, the State argues that appellant waived this error because at the time the indictment was amended by the State, appellant's counsel stated, "No objection to the indictment as amended, your Honor." The State argues that the failure to object constitutes a waiver. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1988). Appellant's assertion is that the failure to state an offense is a fundamental defect and can be raised at any time. An instrument that fails to charge an offense is not a charging instrument under the Texas Constitution and does not invest the trial court with jurisdiction. See Studer v. State, 757 S.W.2d 107, 110 (Tex. App.--Dallas 1988, pet. granted). Such a defect may be raised at any time, and the failure to object is not fatal to an appeal. See Ex parte Kirby, 626 S.W.2d 533, 534 (Tex. Crim. App. 1981). We hold that appellant has not waived the assertion of this alleged fundamental defect.
        However, we find that the indictment, as amended, is not fundamentally defective. In a similar case of sexual assault decided by this Court, the indictment, in pertinent part, read as follows:
        . . . defendant, . . . unlawfully, intentionally and knowingly caused the penetration of the vagina of another person . . . hereinafter called the victim, who is not the spouse of the defendant, without the victim's consent . . . and the defendant compelled the victim to submit and participate by threatening to use force and violence against the victim and the victim believed that the defendant had the ability to execute the threat.
Williams v. State, 690 S.W.2d 656, 658-59 (Tex. App.--Dallas 1985), reversed on other grounds, 719 S.W.2d 573 (Tex. Crim. App. 1986). In Williams, this Court held that the indictment specifically recited the lack of consent, which is the essence of the offense of sexual assault. Williams, 690 S.W.2d at 659. The indictments in this case and in Williams are essentially the same. Williams held that the indictment included all of the elements of the offense of sexual assault and was not fatally defective. Williams, 690 S.W.2d at 659. We overrule point number three.
        In point number four, appellant contends the indictment, as amended, failed to state an offense in plain and intelligible words. When the State amended the indictment, appellant's counsel affirmatively stated, "No objection to the indictment as amended, your Honor." Because appellant affirmatively stated, "No objection," nothing is presented for review. We hold appellant has waived the error, if any. See McGrew v. State, 523 S.W.2d 679, 680 (Tex. Crim. App. 1975); Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1988). We overrule point number four.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
880631F.U05
 
 
File Date[11-02-89]
File Name[880631F]