RICKEY GEVONA THOMPSON, FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00750-CR
RICKEY GEVONA THOMPSON, 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
        Rickey Gevona Thompson 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 threat sufficient to make the assault aggravated. We disagree and affirm.
        The victim was sixteen years old at the time of the offense. She testified that she met the appellant at about 9:30 p.m. on January 31, 1988, at a gas station. Appellant 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. Appellant drove away, and Raymond Lang, co-defendant, 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. Lang remained outside while appellant went in to make the purchase. The Hispanic male went to the other car to talk to Lang and the other men. Lang then got into the car with the victim and appellant. The victim told the men that she wanted to go home but they did not take her there. Instead, appellant 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 Lang 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 Lang that she wanted to go home. Instead, they took her to some apartments where Lang'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 Lang then drove the victim to Mountain Creek Lake, where Lang 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. Appellant parked the car on a dirt road next to the lake. Lang got out of the car and held the door while appellant made sexual advances toward the victim. She screamed and struggled while appellant pulled off her panties and had intercourse with her. Lang the 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. Lang told her to shut up, and then told appellant that he would "cut her up" if she was not quiet. The victim testified that she believed Lang meant to kill her, although she never saw a gun or knife exhibited. She also stated that appellant and Lang had told her that there was a gun under the front seat of the car.
        Appellant put the victim in the back seat of the car and attempted to perform anal intercourse upon her while Lang watched. When she screamed at another passing car, appellant told her to be quiet. Lang then had sexual intercourse with the victim while appellant simultaneously forced her to perform oral intercourse upon him. In an attempt to escape, the victim told appellant that she needed to urinate. He allowed her to leave the car to do so, but held onto her jacket. While she was urinating, Lang forced her to perform oral intercourse upon him. In order to have Lang leave her alone, the victim caused herself to have a bowel movement. Lang left her and went to the car. The victim then distracted appellant by requesting something with which to wipe herself, and she ran toward the toll bridge near the lake. Although both men chased her, only appellant 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, Lang, and the car. Several of the victim's personal items were found in the area. There was testimony that, on January, 31, 1988, appellant and Lang were at appellant'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. Thus, in order to support an aggravated sexual assault conviction under section 22.021 (a) (2) (A) (iii), the evidence, viewed in the light most favorable to the verdict, must show that the appellant, by acts, words, or deeds, threatened the victim with death, serious bodily injury, or kidnapping.
        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.
        We agree that because there was no instruction on the law of parties, the verbal threats made by Lang are not available to support the sufficiency of the evidence in appellant's case.
        It is clear from the record that appellant's acts constituted a threat of kidnapping, serious bodily injury and death. Appellant and Lang restrained the victim and drove her around against her will prior to the occurrence of the sexual assault. When they took her to some apartments, she attempted to escape but was prevented by both men. The victim twice asked to be taken home, but the men refused. Although the men assured her that they would take her home, they took her to Mountain Creek Lake. The fact that the victim initially accompanied appellant voluntarily does not preclude the possibility that she could be threatened with abduction, or be abducted. Rodriguez v. State, 730 S.W.2d 75, 79 (Tex. App.--Corpus Christi 1987, no pet.); see also Phillips v. State, 597 S.W.2d 929, 937(Tex. Crim. App. 1980). The victim was also restrained from escaping while appellant raped her. She stated that she did not fight back because she felt trapped. After appellant sexually assaulted her, Lang sexually assaulted her, and verbally threatened her, stating that he would "cut her up" if she did not stop screaming.
        While no verbal threats were made during the course of the offense by appellant, his actions indicated the threat of kidnapping and bodily injury. The victim testified that she was restrained at all times. She was sexually assaulted several times by both men. When the victim attempted to escape, appellant caught her and beat her. Considering the evidence in the light most favorable to the verdict, the defendant's act of restraining the victim prior to and during the sexual assault, and the beating he inflicted upon her constitute sufficient evidence that appellant's acts in her presence threatened her with kidnapping and serious bodily injury and death. See Richardson v. State, 753 S.W.2d 759, 763-64 (Tex. App.--Dallas 1988, no pet.). 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[880750F]