Reginald Keith Gray v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-028-CR

REGINALD KEITH GRAY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-687-C

O P I N I O N

The jury convicted Reginald Keith Gray of aggravated sexual assault and assessed punishment at seventy-five years in prison. Gray raises five points of error. He complains about the charge on guilt, the lack of sufficient evidence to prove an aggravated offense, and the cumulative effect of those errors. We affirm.

On September 7, 1991, Cynthia Talley accepted a ride home from Gray, a slight acquaintance. When he drove in the opposite direction of Talley's home, she asked him to let her out of the car. Gray warned Talley to be quiet or he would kill her. He pulled the car off the road into a secluded spot where he undressed and fondled her. Talley then attempted to escape, but Gray again threatened to kill her, wrestled with her, bit her on the left shoulder and the left breast, and choked her until she returned to the car. Gray repeatedly forced Talley to perform various sexual acts. Gray eventually fell asleep and Talley escaped.

In the first point, Gray asserts that the court committed a fundamental error by omitting an essential element of aggravated sexual assault from the charge on guilt i.e., the jury must find that the defendant placed the victim in fear of death or serious bodily injury. His second point is that there was a fatal variance between the indictment and the charge on guilt.

The State alleged in the indictment that Gray did then and there:

intentionally and knowingly cause the penetration of the female sexual organ of CYNTHIA TALLEY by the male sexual organ without the consent of CYNTHIA TALLEY by compelling CYNTHIA TALLEY to submit and participate by the use of physical force and violence and by threatening to use physical force and violence against CYNTHIA TALLEY and CYNTHIA TALLEY believed that REGINALD KEITH GRAY had the present ability to execute said threat, and REGINALD KEITH GRAY by acts and word[s] threatened and placed CYNTHIA TALLEY in fear that death and serious bodily injury would be imminently inflicted on CYNTHIA TALLEY, and said acts and words occurred in the presence of CYNTHIA TALLEY.

(Emphasis added).

The charge on guilt contained this application paragraph:

Now if you find from the evidence beyond a reasonable doubt that . . . Reginald Keith Gray did then and there intentionally or knowingly cause the penetration of the female sexual organ of Cynthia Talley by the male sexual organ without the consent of Cynthia Talley by compelling Cynthia Talley to submit or participate by the use of physical force or violence against Cynthia Talley and Cynthia Talley believed that Reginald Keith Gray had the present ability to execute said threat, and Reginald Keith Gray by acts or words threatened or placed Cynthia Talley in fear that death or serious bodily injury would be imminently inflicted on Cynthia Talley, and said acts or words occurred in the presence of Cynthia Talley, then you will find the Defendant guilty of aggravated sexual assault, as charged in the indictment.

(Emphasis added).

Gray's objection to the application paragraph that using the disjunctive in the phrase "threatened or placed Cynthia in fear" lessened the State's burden of proof was overruled. He argues that he suffered "some harm" from the charge because it authorized his conviction on proof that he merely "threatened" Talley with death or serious bodily injury without actually having "placed" her in fear of death or serious bodily injury. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (on rehearing). Accordingly, he contends the court authorized his conviction on a theory not alleged in the indictment and that there was a fatal variance between the charge and the indictment.

The State insists, however, that the charge was correct in any event because it authorized Gray's conviction only on proof that the threatening acts and words were spoken in Talley's presence. Under this theory, which the State points out was also alleged in the indictment, the victim need not be placed in fear of death or serious bodily injury.

Among the factors that elevate sexual assault to aggravated sexual assault are these:

If the person (1) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; or (2) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person.

Tex. Penal Code Ann. 22.021(a)(2)(A)(ii), (iii) (Vernon 1989). The first factor requires proof that the accused's acts or words actually placed the victim in fear of death, serious bodily injury, or kidnapping being imminently inflicted on any person. Perryman v. State, 798 S.W.2d 326, 332 (Tex. App. Dallas 1990, no pet); Wilkerson v. State, 776 S.W.2d 795, 797 (Tex. App. Tyler 1987, pet. ref'd). There is no such requirement with respect to the second factor, which merely requires proof that the accused by acts or words occurring in the victim's presence threatened the imminent infliction of death, serious bodily injury, or kidnapping of any person.

Reduced to its essence, Gray's indictment conjunctively alleged as aggravating factors that he (1) threatened and placed Talley in fear of death or serious bodily injury by his acts or words, and (2) that the acts or words occurred in Talley's presence. However, the charge authorized his conviction on proof that he (1) threatened or placed her in fear of death or serious bodily injury by his acts and words and (2) that the acts and words occurred in Talley's presence. The question is whether Gray suffered "some harm" from the disjunctive submission of the phrase "threatened or placed." See Almanza, 685 S.W.2d at 171.

The Court of Criminal Appeals has held that, when the indictment alleges "placing the victim in fear of death or serious bodily injury," the charge harms the defendant if it disjunctive authorizes his conviction on proof of either "threatening or placing" the victim in fear of death or serious bodily injury. Williams v. State, 612 S.W.2d 934, 935 (Tex. Crim. App. [Panel Op.] 1981). The harm comes from enlarging on the allegations in the indictment i.e., authorizing his conviction on proof that he merely threatened the victim with death or serious bodily injury without requiring that the threats place the victim in fear of death or serious bodily injury. See id. Gray relies on the decision in Williams to obtain a reversal based on "some harm."

Williams is not controlling, however, because of the conjunctive allegation in the indictment and the conjunctive requirement of the charge that the jury find beyond a reasonable doubt that Gray's threatening acts and words occurred in Talley's presence. Requiring the State to prove and the jury to find that the threatening acts or words occurred in the victim's presence cured the harm that otherwise would have resulted from authorizing his conviction solely on disjunctive proof of "threatening or placing" the victim in fear of death or serious bodily injury. See id. Gray was not harmed by the charge because it authorized his conviction on proof beyond a reasonable doubt that he either (1) by acts or words threatened Talley with death or serious bodily injury and that the acts and words occurred in her presence which is one of the aggravating factors or that he (2) by acts or words placed Talley in fear of death or serious bodily injury and that the acts or words occurred in her presence. Thus, rather than lessening the State's burden, as in Williams, the charge here actually increased it by requiring proof beyond a reasonable doubt that the acts or words that placed the victim in fear of death or serious bodily injury occurred in her presence a superfluous requirement as far as the statute is concerned. See Tex. Penal Code Ann. 22.021(a)(2)(A)(ii). Essentially, the charge authorized his conviction on disjunctive proof of either of the two aggravating factors, both of which had been alleged in the indictment.

We overrule point one because Gray was not harmed by the charge. Likewise, we overrule point two because there was no fatal variance between the indictment and the charge.

Gray's third point is that the evidence does not support a finding that Talley was actually placed in fear. However, as discussed above, this is not a necessary element when the proof shows that the threatening acts and words occurred in the victim's presence. See id. 22.021(a)(2)(A)(iii). Point three is overruled.

Gray alleges, in his fourth point, that the court erred when it refused to include an instruction on the lesser-included offense of sexual assault. The test for when a lesser-included offense must be included is stated in Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (op. on reh'g): "First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty he is guilty of only the lesser included offense."

The first prong is clearly present here because sexual assault can be a lesser-included offense of aggravated sexual assault. See Perryman, 798 S.W.2d at 332. However, the second prong is absent. The evidence is sufficient to prove that Gray committed one or both of the aggravating elements. Thus, he could not be guilty only of sexual assault, a lesser-included offense. The instruction was properly refused. See Royster, 622 S.W.2d at 446. Point four is overruled.

In his last point, Gray argues that the cumulative effect of the four alleged errors call for reversal. We overrule point five because there are no errors to have any cumulative effect. We affirm the conviction.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 10, 1993

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