Lloyd Edward Anderson v. The State of Texas--Appeal from 147th District Court of Travis County

Anderson v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-305-CR
LLOYD EDWARD ANDERSON,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0920052, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

Appellant Lloyd Edward Anderson was convicted by a jury of sexual assault, Tex. Penal Code Ann. 22.011 (West 1989), (1) for which punishment was assessed at seventy years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant presents three points of error complaining that the evidence was insufficient to support the judgment of conviction and that the trial court erred in failing to exclude certain statements from the pre-sentence investigation report. We will affirm the trial court's judgment of conviction.

 
FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 1991, the complainant filed a report with the Austin Police Department alleging that she had been sexually assaulted. The complainant told the police that appellant committed the alleged assault. Appellant was subsequently arrested and indicted for the offense of aggravated sexual assault, Tex. Penal Code Ann. 22.021 (West 1989). At trial, the complainant testified that appellant compelled her to submit to sexual intercourse by physical force and by threatening words and conduct. The complainant testified that appellant forcibly entered her apartment and, in the process, pushed her against the wall; that when she reached for the phone, appellant "jerked the base of the phone from the hand receiver part"; that appellant grabbed her, choked her, and told her he had a gun; that appellant lay on her and pinned her arms above her head; and that after sexually assaulting her the first of three times, appellant told her "he could kill me and walk right out of there and nobody would even know it and that he wouldn't think twice about doing it." Appellant testified and admitted having sexual intercourse with the complainant, but denied that he used physical force or threatening words or conduct. Appellant was convicted by the jury of the lesser included offense of sexual assault. Appellant appeals this judgment of conviction.

 
SUFFICIENCY OF THE EVIDENCE

In his first two points of error, appellant contends that the evidence presented at trial was legally and factually insufficient to support the judgment of conviction for sexual assault. Appellant contends that

 

[w]hen the jury found Mr. Anderson guilty of sexual assault instead of aggravated sexual assault, the jury demonstrated it did not believe beyond a reasonable doubt that Mr. Anderson had a gun, said he had a gun, or said that he could kill her and not think twice about it.

 

. . . .

 

The jury did not believe beyond a reasonable doubt that Mr. Anderson choked [the complainant] or that he said he had a gun.

 

In essence, appellant contends that the jury's failure to convict him of aggravated sexual assault is inconsistent with the jury's verdict that he committed all the elements of simple sexual assault. We disagree.

In the jury charge, the trial court instructed the jury regarding the offenses of simple sexual assault and aggravated sexual assault. In order to convict appellant of simple sexual assault, the jury was instructed that it had to believe beyond a reasonable doubt that the sexual intercourse occurred without consent. As defined in the charge, a sexual assault occurred without consent if appellant compelled the complainant "to submit or participate by the use of physical force or violence." See Tex. Penal Code Ann. 22.011(b) (West 1989). In order to convict appellant of aggravated sexual assault as defined in the charge, the jury had to believe beyond a reasonable doubt that the sexual intercourse occurred without consent as defined above and that appellant either (1) "by acts or words" in the complainant's presence, threatened "to cause serious bodily injury to any person" or (2) "by acts or words" placed the complainant "in fear that serious bodily injury" would be "imminently inflicted on any person." See Tex. Penal Code Ann. 22.021(a)(2) (West 1989).

Because the elements of the two offenses are different, we see no inconsistency in the jury's failure to find appellant guilty of aggravated sexual assault, yet finding him guilty of simple sexual assault. The jury could have believed beyond a reasonable doubt that appellant entered the complainant's apartment, pushed her against a wall, grabbed her, lay on her and pinned her arms above her head, and had sexual intercourse with her, all by the use of force or violence, yet failed to believe beyond a reasonable doubt that appellant threatened to cause serious bodily injury to the complainant or placed her in fear that serious bodily injury would be imminently inflicted.

Having found no inconsistency in the jury's actions, we now address the issue of whether the evidence presented at trial was sufficient to support a conviction for simple sexual assault. In his first point of error, appellant contends that the evidence presented was legally insufficient to support a conviction. The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). This Court does not ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt; instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Griffin, 614 S.W.2d at 159.

Viewing the evidence in the light most favorable to the prosecution, the complainant's testimony indicating that appellant pushed her into the wall, choked her, lay on her and pinned her arms above her head, stated he had a gun, and stated he could kill her, even in the face of appellant's contrary testimony, is sufficient to support the judgment of conviction. See, e.g., Todd v. State, 466 S.W.2d 559 (Tex. Crim. App. 1971) (victim's testimony that defendant choked and threatened her, although defendant testified to the contrary, sufficient to support conviction for offense of rape). Further, even assuming that the jury failed to believe that appellant choked her, stated he had a gun, or stated he could kill her, appellant's other actions (e.g., forcibly entering her apartment, pushing her against the wall, grabbing the phone from her and yanking out the cord, grabbing her, lying on her and pinning her arms above her head) are sufficient to support the judgment of conviction for simple sexual assault. We overrule appellant's first point of error.

In his second point of error, appellant contends that the evidence was factually insufficient to support the conviction. When the court of appeals conducts a factual-sufficiency review, the court does not view the evidence in the light most favorable to the prosecution as it does in a legal-sufficiency review; rather, the court views all the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.Austin 1992, State's pet. ref'd as untimely filed, and State's motion for discretionary review without pet. denied). This Court should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. Applying this standard after reviewing the entire record, we conclude that the evidence presented was factually sufficient to support the judgment of conviction for simple sexual assault. We overrule appellant's second point of error.

 
PRE-SENTENCE INVESTIGATION REPORT

In his third point of error, appellant complains that the trial court erred in failing to exclude certain statements from the pre-sentence investigation report. (2) Appellant identifies three statements that he claims should have been excluded. Appellant first objects to the listing of the offense in the report as "Sexual Assault (reduced from Aggravated Sexual Assault/Habitual)." The record reveals that this designation was changed, upon appellant's objection at trial, to "FOUND GUILTY OF LESSER INCLUDED OFFENSE Sexual Assault." Because appellant did not complain of this modified statement in the court below, nor does he complain of this modified statement in his brief to this Court, we conclude that no error is presented for review.

The second statement appellant complains of is contained in the "Police/Court Version" section of the report and states "Anderson grabbed [the complainant] and told her `I have a gun.'" Again, appellant claims that, because the jury failed to convict him of aggravated sexual assault, the jury failed to find that appellant made such statement and, accordingly, such statement does not reflect the jury's findings. We concluded above that the jury's failure to convict for aggravated sexual assault does not necessarily indicate that the jury did not believe beyond a reasonable doubt that appellant stated that he had a gun. Accordingly, we conclude that the trial court did not err in failing to exclude this statement.

Further, even assuming that the jury did not believe that appellant made such a statement, that circumstance does not require that the trial court delete such statement from the report. This section of the report simply provides a summary of the police participation and the court proceedings. The complainant told police and testified at trial that appellant grabbed her and told her he had a gun. Because the complained-of statement accurately portrays the events occurring with respect to police participation and court proceedings, we conclude that the trial court did not err in failing to exclude such statement.

The final statement appellant complains of is contained in the "Weapons/Violence" section of the report and states "[T]he victim, stated that defendant threatened to use a gun if she did not comply with his demands for sex." Appellant objects to this statement for the same reasons indicated above with respect to the statement made in the "Police/Court Version" section. Because we have concluded that the jury's failure to convict for aggravated sexual assault does not necessarily indicate that the jury did not believe beyond a reasonable doubt that appellant stated that he had a gun, we conclude that the trial court did not err in failing to exclude this statement. Further, even assuming that the jury did not believe that appellant made such a statement, that fact would not require that the trial court delete such statement. This statement accurately reflects the complainant's testimony at trial. We conclude that the trial court did not err in failing to exclude this statement.

We also note that the report contained a "Defendant's Version" section which reflects appellant's denial of all allegations regarding the sexual assault. In other words, the report provides a balanced presentation of the proceedings in the present case. We overrule appellant's third point of error.

 
CONCLUSION

Having overruled all of appellant's points of error, we affirm the judgment of conviction.

 

J. Woodfin Jones, Justice

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: August 25, 1993

[Do Not Publish]

1. This statute was amended effective September 1, 1991, after the date of the offense at issue in the present case. The amendment was enacted to change the wording pertaining to spousal relationships in the context of a sexual assault. See Tex. Penal Code Ann. 22.011 (West Supp. 1993).

2. Because the alleged error about which appellant complains does not affect the judgment of the trial court, there is some question whether it is even subject to review by this Court. We will, however, assume without deciding that this point of error presents a reviewable complaint.