RAYMOND LANG, FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00749-CR
RAYMOND LANG, FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
THE STATE OF TEXAS,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, STEWART AND BAKER
OPINION BY JUSTICE STEWART
JUNE 20, 1989
        Raymond Lang appeals his conviction for aggravated sexual assault. After a jury trial, the court assessed punishment at fifty years' confinement. Appellant contends that the evidence is insufficient to sustain his conviction because there was no evidence of any "express threat" made to the victim. We disagree, and affirm.
        The victim was sixteen years old at the time of the offense. She testified that she met Rickey Thompson, the co-defendant, at about 9:30 p.m. on January 31, 1988, at a gas station. Thompson was with a Hispanic male at the time. The victim was out walking, and as she passed a gas station, the two men asked her where she was going, and the Hispanic male asked whether she wanted to "go riding around." Although the victim did not know these men, she accepted a ride from them. Thompson drove away, and appellant, who was also at the gas station, followed in a separate car with four white males.
        Both cars went to a house in South Dallas to buy some drugs. Appellant stayed outside while Thompson went in to make the purchase. The Hispanic male went to the other car to talk to appellant and the other men. Appellant then got into the car with the victim and Thompson. The victim told the men that she wanted to go home but they did not take her there. Instead, Thompson drove to a "beer store" where the group purchased beer, wine coolers and cigarettes. As they left the store, they purchased some "weed" from a man standing outside the store. As the group was "riding around," they smoked the marijuana cigarette, and the victim had a "couple of sips" of beer and a wine cooler, but did not become intoxicated. The victim testified that the two men did become intoxicated.
        Appellant and Thompson took the victim to a private club in Grand Prairie. However, the victim was not admitted because of her age. As the three left the club, the victim again told appellant and Thompson that she wanted to go home. Instead, they took her to some apartments where appellant's girlfriend purportedly lived. The victim, at this point, started to get out of the car while both men were knocking at an apartment door, but when she made this attempt, both men ran back to the car to prevent her escape.
        Appellant and Thompson then drove the victim to Mountain Creek Lake, where the appellant had allegedly stashed some marijuana under a rock. The men told the victim that they were going to take her home. It was now approximately 1:00 a.m. on February 1, 1988. Thompson parked the car on a dirt road next to the lake. Appellant got out of the car and held the door while Thompson made sexual advances toward the victim. She screamed and struggled while Thompson pulled off her panties and had intercourse with her. Appellant then pulled the victim out of the car to the ground. He pulled her out by her arms, bruising them. While on the ground, she saw the lights of a passing car and screamed. Appellant told her to shut up, and then told Thompson that he would "cut her up" if she was not quiet. The victim testified that she believed appellant meant to kill her, although she never saw a knife or gun exhibited. She also stated that appellant and Thompson had told her that there was a gun under the front seat of the car.
        Thompson put the victim in the back seat of the car and attempted to perform anal intercourse upon her while appellant watched. When she screamed at another passing car, Thompson told her to be quiet. Appellant then had sexual intercourse with the victim while Thompson simultaneously forced her to perform oral intercourse upon him. In an attempt to escape, the victim told Thompson that she needed to urinate. He allowed her to leave the car to do so, but held onto her jacket. While she was urinating, appellant forced her to perform oral intercourse upon him. In order to have appellant leave her alone, the victim caused herself to have a bowel movement. Appellant left her and went to the car. The victim then distracted Thompson by requesting something with which to wipe herself, and she ran toward the toll bridge near the lake. Although both men chased her, only Thompson caught her. He hit her on the face, knocked her to the ground and began choking her. He stopped when she began to pray. The victim ran away again and was able to escape.
        The victim had the attendant at the Mountain Creek Lake toll bridge call the police. When the officers arrived, they drove the victim to the Mountain Creek Lake area where she pointed out the appellant, Thompson, and the car. Several of the victim's personal items were found in the area. There was testimony that, on January 31, 1988, Thompson and appellant were at Thompson's house for a short time, that they had played dominoes at a friend's house and had attended a Super Bowl party, and that they had been seen at a lounge.
        Appellant contends that the evidence is insufficient to sustain his conviction for the offense of aggravated sexual assault. He contends that the State failed to prove the aggravating element in this case, because the record reveals no direct threat or action on appellant's part which constituted a threat of serious bodily injury, death, or kidnapping. Appellate review of the sufficiency of the evidence is limited to determining whether, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Beardsley v. State, 738 S.W.2d 681, 683 (Tex. Crim. App. 1987).
        The indictment in this case alleged that, "by acts and words occurring in the presence of the complainant, said defendant threatened to cause the death, serious bodily injury, and kidnapping of [the victim]." See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(iii) (Vernon Supp. 1989).
        We agree with appellant that "when the aggravation [alleged] must be inferred from physical conduct and words of the actor not expressly stating the requisite threat, the words and conduct must amount to more than the quantum of forcefulness needed for a simple sexual assault conviction." Douglas v. State, 740 S.W.2d 890, 891 (Tex. App.--El Paso 1987, no pet.); see Foreman v. State, 743 S.W.2d 731, 732-33 (Tex. App.--El Paso 1987, no pet.). This court has held that the evidence need not show express verbal threats, infliction of serious bodily injury or use of a deadly weapon to support a conviction for aggravated sexual assault. Richardson v. State, 753 S.W.2d 759, 765 (Tex. App.--Dallas 1988, no pet.). The threat may be communicated through acts, words or deeds. Id. We agree with appellant that under section 22.021(a)(2)(A)(iii), the analysis is objective and the focus is on the acts or conduct of the defendant, not on the victim's state of fear or reasonableness of that fear. Douglas, 740 S.W.2d at 891.
        Appellant concedes that the State proved sexual assault, because the intercourse was non-consensual. Thus, he admits that there were threats to use force or violence sufficient to compel the victim to submit or participate in the sexual acts he committed and that the victim believed that he had the present ability to execute the threat, as required in the sexual assault statute. TEX. PENAL CODE ANN. § 22.011 (a) (2). However, he contends that these admitted threats did not rise to the level of acts or words occurring in the presence of the victim that threatened to cause her death, serious bodily injury, or kidnapping, and that, even if these threats did rise to this level, they did not compel the submission of the victim to the act. Therefore, he argues that the State failed to prove the aggravating element of the offense of aggravated sexual assault.
        First, appellant maintains that his statement that he would "cut up" the victim if she was not quiet was not a threat to cause serious bodily injury, death or kidnapping. We disagree. See Richardson, 753 S.W.2d at 765-66. His statement, acts and conduct were of the nature that threatened the victim with death or serious bodily injury.
         Second, appellant maintains that his statement was not a verbal threat addressed to the victim. However, he made this statement while he was holding the victim on the ground and thus was "in her presence." Section 22.021 (a)(2)(A)(iii) only requires the defendant to threaten "any person" "by acts or words occurring in the presence" of the victim. Therefore, the threat does meet the requirement of being in the victim's presence.
        Third, appellant suggests that the threat will not support the conviction because the threat was negated when Thompson told the victim that he would not allow appellant to cut her up. As we stated earlier, our focus is on the acts and conduct of the appellant, and not on the victim's state of fear. Therefore, appellant's argument that the threat was negated because of Thompson's statement to the victim is incorrect. This argument would only be slightly more persuasive if the victim's state of fear and the reasonableness of that fear were at issue.
        Fourth, appellant contends that because this statement was made after the offense began and after the victim had already been compelled to submit, TEX. PENAL CODE ANN. § 22.011, it had no effect in compelling submission. We disagree. Appellant and Thompson both had vaginal and oral intercourse with the victim after the verbal threat was made. We hold that the verbal threat was sufficient to make these subsequent sexual assaults aggravated.
        Even though we have found that appellant's statement did compel the victim to submit to the further assault, we do not believe that such a finding is necessary to convict under section 22.021(a)(2)(A)(iii). While the language requiring the threat to compel submission to the assault was in the former aggravated rape statute, TEX. PENAL CODE ANN. § 21.03 (a)(2) (Vernon 1974), that statute was repealed and the new aggravated sexual assault statute removed this requirement. Id. § 22.021(a)(2)(A)(iii). (See discussion of the legislative history of this statute in Richardson, 753 S.W.2d at 765.).
        It is clear from the record that appellant's acts and words constituted a threat of kidnapping, serious bodily injury and death. Appellant and Thompson restrained the victim and drove her around against her will prior to the sexual assault. She was prevented from leaving when the group stopped at some apartments even though she told the men that she wanted to go home. The men drove her to Mountain Creek lake where appellant stood outside the car door to prevent the victim from escaping while Thompson raped her. Appellant pulled the victim out of the car after Thompson raped her and he threatened to "cut her up" if she did not stop screaming. This threat did not come too late, as alleged by the appellant, because it compelled her cooperation with appellant and Thompson when appellant and Thompson later raped her. See Douglas, 740 S.W.2d at 892.
        We conclude that considering the evidence in the light most favorable to the verdict, the appellant's act of restraining the victim prior to the sexual assault and during the initial assault by Thompson, and his verbal threat, constitute sufficient evidence that appellant, by acts or words, threatened the victim with kidnapping, serious bodily injury and death. The point of error is overruled.
        The judgment of the trial court is affirmed.
 
 
 
                                                          ANNETTE STEWART
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00749.F
 
 
File Date[01-02-89]
File Name[880749F]