Opinion
No. 10-19-00363-CR
08-26-2020
Brian Christopher REED, Appellant v. The STATE of Texas, Appellee
In three issues, appellant, Brian Christopher Reed, challenges his conviction for attempted sexual assault. See TEX. PENAL CODE ANN. § 21.011(a)(1). We reverse and remand.
I. BACKGROUND
This case involves a birthday celebration gone awry. On the evening of October 2, 2013, M.K., then a student at Texas A&M University, celebrated her twenty-third birthday with several of her girlfriends. M.K. and her girlfriends went to Wings ‘N More to eat and then later to The Tap bar. M.K. drank large amounts of alcohol that evening. In fact, by her own admission, M.K. was highly intoxicated when she left The Tap. Given her intoxicated state, M.K. returned to her condominium near the Texas A&M University sorority houses. M.K. said she went upstairs to her bedroom and fell asleep. M.K. awoke with somebody, later identified as Reed, on top of her. M.K. recounted that, despite having pants on when she went to sleep, she was not wearing any pants or underwear when she awoke. M.K. believed that Reed had raped her. M.K. screamed for her roommate, Caitlin Scott, and pushed Reed off her. Caitlin pushed Reed out of the condominium while screaming and yelling. One of M.K.'s girlfriends, Cassidy Jackson, called the police.
Trevor Allen had been invited over to the condominium by M.K.'s roommate, Caitlin Scott. Reed was a friend and co-worker of Allen's who accompanied Allen over to the condominium that night. Caitlin noted that, after arriving at the condominium, Reed asked to use the upstairs bathroom, which was across the hall from M.K.'s bedroom. Reed also testified that he had seen M.K. at The Tap bar that night.
The means of the penetration of M.K.'s sexual organ was disputed at trial. M.K. and other witnesses for the State testified that Reed penetrated M.K.'s sexual organ with his sexual organ. However, Reed presented evidence, including his own testimony, that he did not penetrate M.K.'s sexual organ with his sexual organ, but rather performed oral sex on M.K. that evening.
After an investigation, Reed was charged by indictment with the sexual assault of M.K. by penetrating her sexual organ with his sexual organ. This case proceeded to trial. Prior to jury deliberations, the trial court included an instruction in the jury charge on the lesser-included offense of attempted sexual assault. At the conclusion of trial, the jury found Reed guilty of the lesser-included offense of attempted sexual assault and assessed punishment at three-and-a-half years incarceration in the Institutional Division of the Texas Department of Criminal Justice with a $1,000 fine. The trial court certified Reed's right of appeal, and this appeal followed.
II. THE JURY CHARGE
In his first issue, Reed contends that the trial court erred by including in the jury charge the lesser-included offense of attempted sexual assault without limiting the means. We agree.
A. Jury-Charge Error
In reviewing a jury-charge issue, an appellate court's first duty is to determine whether error exists in the jury charge. Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If error is found, the appellate court must analyze that error for harm. Middleton v. State , 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly preserved by objection, reversal will be necessary if the error is not harmless. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved at trial by proper objection, as was the case here, a reversal will be granted only if the error presents egregious harm, meaning Reed did not receive a fair and impartial trial. Id. To obtain a reversal for jury-charge error, Reed must have suffered actual harm and not just merely theoretical harm. Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) ; Arline v. State , 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
"As a general rule, the instructions [in the jury charge] must ... conform to allegations in the indictment." Sanchez , 376 S.W.3d at 773. The jury charge may not enlarge the offense alleged and authorize the jury to convict the defendant on a basis or theory permitted by the jury charge but not alleged in the indictment. Reed v. State , 117 S.W.3d 260, 265 (Tex. Crim. App. 2003) ; see Fella v. State , 573 S.W.2d 548, 548 (Tex. Crim. App. 1978) (holding that the trial court erred by authorizing the jury to find appellant guilty based on a theory not alleged in the indictment). The Court of Criminal Appeals has stated "the indictment [is] the basis for the allegations which must be proved and ... the hypothetically correct jury charge for the case must be authorized by the indictment." Gollihar v. State , 46 S.W.3d 243, 245 (Tex. Crim. App. 2001) (quotations omitted). Furthermore, the "law as ‘authorized by the indictment’ includes the statutory elements of the offense ‘as modified by the charging instrument.’ " Daugherty v. State , 387 S.W.3d 654, 655 (Tex. Crim. App. 2013) (quoting Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ). Therefore, "a hypothetically correct jury charge would not simply quote from the controlling statute." Gollihar , 46 S.W.3d at 245.
The Gollihar Court further explained that "when the statute defines alternative manner and means of committing an element and the indictment alleges only one of those methods, ‘the law’ for purposes of the hypothetically correct charge, is the single method alleged in the indictment." Id. "For example, although the State may be permitted to plead multiple statutory manner and means in the charging instrument, it could choose to plead only one." Thomas v. State , 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). "However, in so doing, the State is required to prove that the defendant committed the alleged crime using that specific statutory manner and means, and it may not rely on any other statutory manner and means of committing the crime it did not plead in the charging instrument." Id. Accordingly, error exists when "the trial court improperly broaden[s] the indictment" with a jury charge that alleges alternative manner and means that were not pled in the indictment. See Reed , 117 S.W.3d at 265.
The indictment in this case alleged that on or about October 3, 2013, Reed "then and there intentionally or knowingly cause the penetration of the sexual organ of M.K. by defendant's sexual organ , without the consent of M.K." (Emphasis added). The abstract portion of the jury charge specifically defined the charged offense of sexual assault as follows: "Our law provided that a person commits the offense of Sexual Assault, if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person who is not the spouse of the actor by any means , without that person's consent." (Emphasis added). Regarding the charged offense of sexual assault, the application portion of the jury charge correctly tracked the language of the indictment. However, the application portion of the jury charge also provided the following instruction on attempted sexual assault, which was not requested by Reed:
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about October 3, 2013 in Brazos County, Texas, the Defendant, Brian Reed, did then and there, with specific intent to commit the offense of Sexual Assault do an act which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended, you will find the defendant guilty of the lesser-included offense of Attempted Sexual Assault.
You are further instructed that it is no defense to criminal attempt if the Sexual Assault was actually committed.
A review of the entire jury charge reveals that the instruction corresponding with the alleged lesser-included offense of attempted sexual assault is erroneous because it does not contain the proper limiting language. In particular, unlike the greater offense that was restricted to the penetration of M.K.'s sexual organ by Reed's sexual organ, the instruction on attempted sexual assault merely references the generic definition for sexual assault, which, as defined in the charge, encompasses the penetration of the anus or sexual organ of another person who is not the spouse of the actor by any means , without that person's consent. In other words, the instruction on attempted sexual assault improperly broadened the indictment by alleging a manner and means that were not plead in the indictment. See Reed , 117 S.W.3d at 265.
This is of particular importance in this case because there were conflicting stories. The testimony of the State's witnesses supported the allegation that Reed penetrated M.K.'s sexual organ with his sexual organ without her consent. However, there was also evidence that Reed did not penetrate M.K.'s sexual organ with his sexual organ, but rather penetrated her sexual organ with his mouth. The broad instruction for attempted sexual assault, coupled with the conflicting stories supported by the evidence, allowed the jury to convict Reed on a theory not alleged in the indictment—that Reed penetrated M.K.'s sexual organ with his mouth, rather than his sexual organ. See id. ; see also Thomas , 444 S.W.3d at 8 ; Gollihar , 46 S.W.3d at 245 ; Fella , 573 S.W.2d at 548. Thus, we conclude that the jury-charge instruction corresponding with the allegation of attempted sexual assault was erroneous. B. Harm Analysis
In determining whether charge error has resulted in egregious harm, we consider: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and the weight of the probative evidence; (3) the final arguments of the parties; and (4) any other relevant information revealed by the trial court as a whole. Allen v. State , 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) ; Sanchez v. State , 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
1. The Entire Jury Charge
"A jury charge is fundamentally defective if it authorizes a conviction without requiring the jury to find all the elements of an offense beyond a reasonable doubt." Sanchez v. State , 182 S.W.3d 34, 63 (Tex. App.—San Antonio 2005), aff'd , 209 S.W.3d 117, 125 (Tex. Crim. App. 2006). "It is now axiomatic that a defendant is to be tried only on the crimes alleged in the indictment...." Abdnor v. State , 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) ; see Daugherty , 387 S.W.3d at 665 ("The law as ‘authorized by the indictment’ includes the statutory elements of the offense ‘as modified by the charging instrument.’ " (quoting Curry , 30 S.W.3d at 404 )).
Viewed in its entirety, we conclude that the jury charge affected the very basis of the case because it allowed jurors to convict Reed on the belief that he penetrated M.K.'s sexual organ by means other than that alleged in the indictment—his sexual organ. The jury charge accurately quoted the statutory elements of the offense. However, the indictment modified the statutory elements of the applicable law so that the jury should have found Reed guilty of sexual assault only if it unanimously believed Reed penetrated M.K.'s sexual organ with his sexual organ. Similarly, with respect to the allegation of attempted sexual assault, the jury charge should have confined the analysis to whether Reed tried, but failed, to commit the offense of sexual assault, as alleged in the indictment, by penetrating M.K.'s sexual organ with his sexual organ. Because the instruction on attempted sexual assault allowed the jury to consider the penetration of M.K.'s sexual organ by any means, including Reed's mouth, the jury charge improperly broadened the means by which the jury was authorized to convict Reed; thus, the charge did not comport with the indictment. And as such, there is a significant possibility that Reed was convicted without the jury unanimously agreeing on the essential fact that he tried, but failed, to penetrate M.K.'s sexual organ with his sexual organ. See Abdnor , 871 S.W.2d at 731 ("[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function.").
2. The State of the Evidence and Counsel's Arguments
"One of [the] considerations in the determination of egregious harm is whether the error related to a contested issue." Hutch , 922 S.W.2d at 172 (quotations omitted). "When the error relates to an incidental defensive theory rather than an obviously contested issue, the harm is less likely to be egregious." Hines v. State , 535 S.W.3d 102, 114 (Tex. App.—Eastland 2017, pet. ref'd).
The record reflects that the means of penetration was contested throughout trial. As noted above, the testimony of the State's witnesses supported the allegation that Reed penetrated M.K.'s sexual organ with his sexual organ without her consent. However, Reed testified that he did not penetrate M.K.'s sexual organ with his sexual organ, but rather penetrated her sexual organ with his mouth. Throughout trial and closing arguments, Reed's counsel specifically argued that Reed could only be convicted if the jury found that he penetrated M.K.'s sexual organ with his sexual organ without consent or, with respect to "attempted sexual assault would mean that he attempted to stick his penis in her vagina and was not successful. That's what that would mean." The State, on the other hand, emphasized that the evidence supported a finding that Reed penetrated M.K.'s sexual organ with his sexual organ. The State did not mention in closing arguments Reed's admission that he performed oral sex on M.K. that night.
Based on the foregoing, we conclude that the jury charge affected the very basis of the case; thus, we hold that the erroneous charge resulted in Reed suffering egregious harm. See Stuhler , 218 S.W.3d at 719 ; Sanchez , 209 S.W.3d at 121 ; Almanza , 686 S.W.2d at 171 ; see also Lampkin v. State , 607 S.W.2d 550, 551 (Tex. Crim. App. [Panel Op.] 1980) (holding that it is reversible error, even without objection at trial, when the jury charge allows the jury to convict the defendant on a different theory than what was alleged in the indictment). We sustain Reed's first issue.
We do not address Reed's remaining issues, as his first issue is dispositive in the outcome of this appeal.
III. CONCLUSION
We reverse the judgment of the trial court and remand the cause for a new trial.
(Chief Justice Gray dissenting)
DISSENTING OPINION
TOM GRAY, Chief Justice
This is one of those cases that turns on the evaluation of a number of factors to determine if the appellant was harmed as the result of unobjected to error in the charge. The issue in this case has to do with the submission of a charge on sexual assault and the lesser included offense of attempted sexual assault. There are various manner and means of committing the offense. The State limited its theory of liability to vaginal penetration with the defendant's sexual organ. That is how it was charged, thus limiting the jury's consideration to that single manner and means. But the experienced trial court judge also recognized that the evidence supported a determination that if the defendant was guilty, he may be found guilty only of the lesser included offense of attempted sexual assault because the defendant denied any penetration with his sexual organ. So, the trial court included in the charge a lesser included application paragraph for attempted sexual assault.
It was a nearly perfect charge, except that the lesser included was not specifically limited to the manner and means of the greater offense as is necessary to properly submit a lesser included to the jury. It is an understandable oversight when neither party is helping the trial court because neither wants that as an option. The State wants a guilty verdict on sexual assault. The defendant wants an acquittal on sexual assault with no other option for the jury. The jury rejected the greater offense and convicted on the lesser included.
It is, after all, the court's charge.
The Court properly determines there is error in the charge. The specific error is that the application paragraph for the attempted sexual assault did not limit the theories of sexual assault that were attempted to only the theory of sexual assault submitted in the greater offense, penetration by the defendant's sexual organ.
In theory, the jury could have said the defendant did not penetrate the victim with his penis, nor did he attempt to, but rather he attempted (or completed) penetration in some other manner; thus, he is guilty of the lesser included on that other theory. That is the theory and the finding of error. Even though one has to be a mental gymnast to run past the greater offense to the lesser, and then do a back-flip back to the abstract portion of the charge for the definition of sexual assault on all the other theories for how to commit sexual assault, before then vaulting over the specific theory to land on an attempt to commit sexual assault on a theory other than the greater offense, I do have to agree that is a possibility. Accordingly, I must concur in the determination of error.
Having determined error, we move to the harm analysis. This is where I diverge from my colleagues. I believe the error was harmless. Not only would the jury have to go through the mental gymnastics described, which is against the logical flow of the charge, it is the evidence and the arguments that convinces me that the defendant was not harmed by the error in the charge.
The Court discusses in its opinion the various factors we must evaluate to determine if the unobjected to error was egregiously harmful, and I will not reiterate that discussion in this dissenting opinion. In conducting the evaluation, the Court reviews the arguments of counsel. In my analysis, on this record, I apparently weigh that factor much more heavily than does the Court. In particular, no one argued that any manner and means of attempted sexual assault other than penetration with his sexual organ would support a conviction on the lesser included charge. In fact, no other manner and means of committing sexual assault was even eluded to during arguments. The State was going for broke, Sexual Assault, and spent no time arguing the lesser included when clearly the evidence would have supported such an argument. In summary, the State's argument for the lesser included could have been something like:
He stalked her from the restaurant, to the bar, to her home, to her bedroom. There he removed her clothes, he removed his clothes, he prepared her, and then got on top of her. But then she woke up and realized what was happening and fought him off. At the very least, he committed attempted sexual assault.
But that was not argued by the State. The State argued only for a conviction for sexual assault.
The Court also discusses the arguments by the defendant. The defendant's arguments were correct and properly limited the jury's consideration to the lesser included theory of sexual assault charged in the indictment, penetration with his sexual organ. The defendant argued that "attempted sexual assault would mean that he attempted to stick his penis in her vagina and was not successful." Thus, it is not that the jury was without guidance on the limitation of the theory on which they could properly convict the defendant. It could be said that the defendant actually argued the hypothetically correct charge.
Therefore, in evaluating the various factors, which are properly set out in the Court's opinion, to determine if the defendant was egregiously harmed by the error in the court's charge, I come to the conclusion under the applicable standard of review that the error was harmless. I would, therefore, affirm the trial court's judgment. Because the Court reverses the trial court's judgment and remands this case for a new trial, I must, respectfully, dissent.