Alexander Ulysses Chabrier v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00762-CR
Alexander Ulysses Chabrier, Appellant
v.
The State of Texas, Appellee
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NO. CR-16-0606, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
OPINION
A jury convicted appellant Alexander Ulysses Chabrier of the offense of
attempted sexual assault and assessed punishment at five years’ imprisonment with a
recommendation that imposition of the sentence be suspended. See Tex. Penal Code
§§ 15.01(a), 22.011(a)(1). The district court rendered judgment on the verdict and placed
Chabrier on community supervision for ten years. In two issues on appeal, Chabrier asserts that
the district court erred in refusing to charge the jury on offensive-contact assault, which he
contends is a lesser-included offense of sexual assault, and argues in the alternative that if
offensive-contact assault is not a lesser-included offense of sexual assault, then trial counsel was
ineffective in “planning his entire trial strategy around obtaining said charge.” We will affirm
the district court’s judgment.
BACKGROUND
The State charged Chabrier with sexually assaulting H.H., a student at Texas State
University. H.H. testified that on the night of August 19, 2015, she was watching a movie at her
apartment with her roommate, Erin Ratcliffe, and Ratcliffe’s friend, Chabrier. All three were
drinking. At approximately 2:00 a.m., H.H. went to her bedroom and fell asleep. Later, she
awoke with her pants and underwear pulled down to her knees, while Chabrier was touching her
vagina with his fingers and “taking pictures” of her with his iPhone. H.H. demanded to see the
photos, which were black and showed nothing visible. H.H. told Chabrier “to get rid of the
pictures,” and he deleted them. H.H. then told Chabrier repeatedly to leave her bedroom, while
he begged her not to say anything to Ratcliffe. Chabrier left the bedroom eventually, and H.H.,
who was now sobbing uncontrollably, used her phone to call Ratcliffe for help. Shortly
thereafter, Ratcliffe entered H.H.’s bedroom, was told by H.H. what Chabrier had done, and
went into the living room to confront him. Ratcliffe testified that Chabrier “apologized profusely
and kept on saying, ‘I’m sorry. I’m sorry. I’m drunk.’” Chabrier then left the apartment.
Ratcliffe spoke further with H.H. after Chabrier left. Ratcliffe testified that her
recollection of the conversation was “very hazy,” but she recalled that H.H. had told her that “it
was just an attempt—like, he had taken down or tried to pull off her pants and then maybe, like,
touched her upper stomach, belly area and then [H.H.] woke up and was like, ‘No.’” Later that
morning, Ratcliffe took H.H. to the Hays County Jail, where H.H. was interviewed by Officer
Dustin Slaughter of the San Marcos Police Department. H.H. told Officer Slaughter that she was
not certain if Chabrier had penetrated her digitally, although she would later indicate in her
written statement to the police, in a follow-up interview with another officer, and in her trial
testimony that she had felt at least one of Chabrier’s fingers inside her vagina.
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Chabrier, who testified in his defense, characterized H.H.’s testimony as
“absolutely false.” Chabrier’s version of events was that he had awakened that night needing to
go to the bathroom, was “very disoriented and very drunk,” and “stumbled” and “fell” into
H.H.’s bedroom by mistake. Once inside H.H.’s room, Chabrier reached for his iPhone to turn
on its “flashlight” feature but instead clicked accidentally on his phone’s camera, resulting in the
photos. He denied touching H.H. in any manner.
At the charge conference, defense counsel requested an instruction on the Class C
misdemeanor offense of offensive-contact assault, which counsel argued was a lesser-included
offense of sexual assault. The district court denied Chabrier’s request but, on the State’s request,
included an instruction on the lesser-included offense of attempted sexual assault. The jury
convicted Chabrier of the attempt offense. This appeal followed.
ANALYSIS
Lesser-included offense instruction
In his first issue, Chabrier asserts that he was entitled to an instruction on
offensive-contact assault. He argues that it is a lesser-included offense of sexual assault as
charged in the indictment and that the district court erred in concluding otherwise.
Standard of review
We review a trial court’s refusal to give a requested instruction on a lesser-
included offense using the same standard for charge error generally. See Braughton v. State, 569
S.W.3d 592, 613 (Tex. Crim. App. 2018) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g)). First, we determine if the trial court erred in refusing the
request; if so, we then review the record to determine if the defendant was harmed by the error.
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See id.; Almanza, 686 S.W.2d at 173–74; see also Arteaga v. State, 521 S.W.3d 329, 333
(Tex. Crim. App. 2017); Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Sweed v.
State, 351 S.W.3d 63, 69–70 (Tex. Crim. App. 2011).
Analytical framework
“An offense is a lesser included offense if it is established by proof of the same or
less than all the facts required to establish the commission of the offense charged.” Tex. Code
Crim. Proc. art. 37.09(1). “Whether a defendant is entitled to a jury instruction on a lesser-
included offense involves a two-step analysis.” Safian v. State, 543 S.W.3d 216, 219
(Tex. Crim. App. 2018) (citing Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011)).
“The first step of the lesser-included-offense analysis asks ‘whether the lesser-included offense is
included within the proof necessary to establish the offense charged.’” Id. at 219–20. “This is a
question of law, and it does not depend on the evidence to be produced at trial.” Id. at 220.
“The second step of the lesser-included-offense analysis is to determine whether
there is some evidence in the record that would permit a jury to rationally find that, if the
defendant is guilty, he is guilty only of the lesser-included offense.” Id. “This is a fact
determination and is based on the evidence presented at trial.” State v. Meru, 414 S.W.3d 159,
163 (Tex. Crim. App. 2013). “If there is evidence that raises a fact issue of whether the
defendant is guilty only of the lesser offense, an instruction on the lesser-included offense is
warranted, regardless of whether the evidence is weak, impeached, or contradicted.” Id.
This case concerns the first step of the analysis. In this step, “we employ the
cognate-pleading approach adopted in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007),
which requires us to compare the elements of the greater offense as pled to the statutory elements
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of the potential lesser-included offense in the abstract.” Ex parte Castillo, 469 S.W.3d 165, 169
(Tex. Crim. App. 2015). “[W]hen the greater offense may be committed in more than one
manner, the manner alleged will determine the availability of lesser-included offenses.’” Hall,
225 S.W.3d at 531. “An offense is a lesser-included offense of another offense . . . if the
indictment for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-
included offense, or (2) alleges elements plus facts (including descriptive averments, such as
non-statutory manner and means, that are alleged for purposes of providing notice) from which
all of the elements of the lesser-included offense may be deduced.” Ex parte Watson,
306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g).
“[T]he elements of the lesser-included offense do not have to be pleaded in the
indictment if they can be deduced from facts alleged in the indictment.” Meru, 414 S.W.3d at
162. “When there are allegations in the indictment that are not identical to the elements of the
lesser offense, a court should apply the functional-equivalence test to determine whether
elements of the lesser offense are functionally the same or less than those required to prove the
charged offense.” Safian, 543 S.W.3d at 220 (citing Cavazos v. State, 382 S.W.3d 377, 384
(Tex. Crim. App. 2012)). “An element of the lesser-included offense is functionally equivalent
to an allegation in the charged greater offense if the statutory elements of the lesser offense can
be deduced from the elements and descriptive averments in the indictment for the charged
greater offense.” Id. (citing McKithan v. State, 324 S.W.3d 582, 588–89 (Tex. Crim. App.
2010)).
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Comparing sexual assault as alleged in the indictment to offensive-contact assault
As alleged in the indictment, Chabrier was charged with intentionally or
knowingly causing the penetration of H.H.’s sexual organ, by his finger or object unknown to the
grand jury, without the consent of H.H. 1 See Tex. Penal Code § 22.011(a)(1)(A). A person
commits offensive-contact assault if the person intentionally or knowingly causes physical
contact with another when the person knows or should reasonably believe that the other will
regard the contact as offensive or provocative. Id. § 22.01(a)(3). Chabrier asserts that the last
element in offensive-contact assault—“the person knows or should reasonably believe that the
other will regard the contact as offensive or provocative”—is functionally equivalent to the
“without consent” element in the charged sexual-assault offense.
The district court, in concluding that offensive-contact assault was not a lesser-
included offense of sexual assault, relied on this Court’s opinion in Mathis v. State, 443 S.W.3d
391 (Tex. App.—Austin 2014, no pet.). In Mathis, this Court considered whether two types of
assault—bodily-injury assault and offensive-contact assault 2—were lesser-included offenses of
sexual assault. The defendant had been charged with intentionally or knowingly causing the
1
The statutory definition of “without consent” was not included in either the indictment
or the jury charge. Chabrier did not object to this omission in the court below and does not raise
any complaint on appeal regarding the omission.
2
Three types of assault are listed in the assault statute: (1) bodily-injury assault;
(2) assault by threat; and (3) offensive-contact assault. Tex. Penal Code § 22.01(a)(1)–(3).
During the charge conference in Mathis, the defendant requested an instruction on “assault” but
failed to specify the type of assault to which he was referring. 443 S.W.3d 391, 396
(Tex. App.—Austin 2014, no pet.). Based on “the context of his argument in the charge
conference,” this Court surmised that Mathis was arguing for an instruction on bodily-injury
assault. Id. However, Mathis’s reply brief suggested that he also might have been arguing that
he was entitled to an instruction on offensive-contact assault. See id. at 398 & n.4. Accordingly,
this Court decided to “include the offense of offensive-contact assault in [its] analysis.” Id. at
398 n.4.
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penetration of the victim’s sexual organ with his sexual organ without her consent. See id. at
397. The defendant asserted that under a “functional-equivalence analysis, the act of penetrating
the sexual organ without consent itself supports an inference of bodily injury or, at the very least,
constitutes an ‘offensive touching.’” Id. at 398.
This Court disagreed, observing that “the issue is not whether bodily-injury
assault or offensive-contact assault may be deduced or inferred from the indictment’s allegation
that Mathis penetrated [the victim’s] sexual organ without her consent, but whether this
allegation in the indictment is functionally equivalent to an allegation of bodily-injury assault or
to an allegation of offensive-contact assault—i.e., whether, in establishing the allegation of
penetration of the sexual organ without consent, the State was required to prove bodily-injury
assault or offensive-contact assault.” Id. This Court concluded that the State was not required to
prove either bodily injury or offensive contact to demonstrate that the defendant penetrated the
victim’s sexual organ without her consent. Id. Therefore, “the penetration of [the victim’s]
sexual organ without her consent is not the functional equivalent of bodily injury or offensive
contact.” Id.
The Court of Criminal Appeals reached similar conclusions regarding offensive-
contact assault in McKithan, supra, which involved two cases that the court had consolidated for
review. In one case, the defendant was charged with aggravated sexual assault. 324 S.W.3d at
584. In the other case, the defendant was charged with bodily-injury assault. Id. at 583. In both
cases, the court rejected the defendant’s contention that offensive-contact assault was a lesser-
included offense of the charged offense. Id.
In the aggravated-sexual-assault case, the defendant was charged with penetrating
the victim’s sexual organ with his finger and without the victim’s consent, specifically “by the
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use of physical force or violence.” Id. at 584. The defendant sought an instruction on offensive-
contact assault, arguing that the offenses “may be deduced or inferred from the indictment’s
‘physical force and violence’ allegation.” Id. at 589. The court disagreed, observing that the
issue “is not whether . . . offensive-contact assault may be deduced or inferred from the
indictment’s allegation that [the defendant] used ‘physical force and violence’ but whether this
allegation in the indictment is functionally equivalent to an allegation of . . . offensive-contact
assault (i.e., whether, in establishing the ‘physical force and violence’ allegation in the
indictment, the State was required to prove . . . offensive-contact assault).” Id. at 589–90. The
court concluded that “the ‘physical force and violence’ allegation in [the defendant’s] indictment
is not functionally equivalent to an allegation of physical contact and that the State was not
required to prove physical contact in establishing this ‘physical force and violence’ allegation in
[the defendant’s] aggravated-sexual-assault indictment.” Id. at 590.
In the bodily-injury assault case, the defendant was charged with assaulting the
victim by kicking her with his foot. Id. at 583–84. The defendant argued that “the element of
causing bodily injury [by kicking] is legally equivalent to the complainant’s regarding such
contact as offensive or provocative.” Id. at 591.
Again, the court disagreed, observing that “[t]he State was not required to prove
the latter (i.e., that appellant knew or should reasonably have believed that the complainant
would regard this contact as offensive) to establish the former (i.e., that appellant caused the
complainant bodily injury by kicking).” Id. The court concluded that “[i]n establishing the
charged bodily-injury-assault offense, the State was required to prove only that appellant caused
the complainant bodily injury by kicking her. It is irrelevant whether the defendant knew or
should have reasonably believed that the complainant would consider this contact as offensive or
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provocative.” Id. The court added that this was true even if the evidence demonstrated that the
victim considered the kicking to be offensive or provocative: “The relevant inquiry is not what
the evidence may show but what the State is required to prove to establish the charged offense.
And, in [this] case, we have decided that the State was not required to prove offensive contact in
establishing the charged bodily-injury-assault offense (even though the State’s evidence may
have shown offensive contact).” Id. at 593–94 (internal citations omitted).
Similar reasoning has been applied in cases where the defendant was charged with
indecency with a child by sexual contact. In Ramos v. State, 981 S.W.2d 700 (Tex. App.—
Houston [1st Dist.] 1998, pet. ref’d), the defendant was charged with touching the child’s anus,
genitals, and breast. Id. at 700–01. The defendant argued that he was entitled to an instruction
on offensive-contact assault. Id. at 701. The court disagreed, observing that the charged
indecency offense did not require proof of the “additional fact” that “the defendant knew or
reasonably believed that the complainant would regard the contact as offensive or provocative at
the time of the contact.” Id. The court added, “Even though there may have been some evidence
appellant knew or reasonably believed that the five-year-old complainant would regard the
contact as offensive, such is immaterial” to the analysis. Id.; see also Shea v. State, 167 S.W.3d
98, 106 (Tex. App.—Waco 2005, pet. ref’d) (“The proof required to establish assault by
offensive or provocative contact is different, not less, than that required to prove indecency with
a child by contact.”). Similarly, in Scott v. State, 202 S.W.3d 405, 412 (Tex. App.—Texarkana
2006, pet. ref’d), the court observed that to prove indecency with a child, the State had to
demonstrate that the defendant “acted with intent to arouse or gratify the sexual desire of some
person; it did not have to prove [the defendant] knew or should have reasonably believed that
[the child] would regard the contact as offensive or provocative. Even though there may be
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some evidence that is probative of both elements, they remain distinctive elements.” Id. “Put
another way, a defendant may be found guilty of indecency with a child regardless of whether a
complainant found the conduct offensive or provocative.” Id.
The same is true of sexual assault as alleged here. To prove that Chabrier
committed sexual assault, the State was required to prove that he penetrated H.H.’s sexual organ
without her consent; the State was not required to prove that Chabrier knew or should have
reasonably believed that H.H. would regard the contact as offensive or provocative. In other
words, Chabrier could be guilty of penetrating H.H.’s sexual organ without her consent even if
there was no evidence presented as to his knowledge or belief that H.H. would regard the contact
as offensive or provocative.
Following the analysis in McKithan, Mathis, and the other cases cited above, we
conclude that the elements of offensive-contact assault are not “functionally the same or less than
those required to prove” the charged offense of sexual assault. See McKithan, 324 S.W.3d at
590–91, 593–94; Mathis, 443 S.W.3d at 398; Scott, 202 S.W.3d at 412; Ramos, 981 S.W.2d at
701. Accordingly, the district court did not err in refusing Chabrier’s request for an instruction
on offensive-contact assault.
We overrule Chabrier’s first issue.
Ineffective assistance of counsel
In his second issue, Chabrier asserts that he received ineffective assistance of
counsel during trial. Specifically, he contends that if the district court was correct in refusing
counsel’s request for an instruction on offensive-contact assault, then counsel was deficient in
“planning his entire trial strategy” around obtaining such an instruction.
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To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State, 548 S.W.3d
497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. Strickland, 466 U.S. at 687-88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App.
2017). The appellant must then show the existence of a reasonable probability—one sufficient to
undermine confidence in the outcome—that the result of the proceeding would have been
different absent counsel’s deficient performance. Strickland, 466 U.S. at 694; Burch v. State,
541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland,
466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
The record does not support Chabrier’s assertion that trial counsel “planned his
entire trial strategy” around obtaining an instruction on offensive-contact assault. Throughout
trial, counsel’s primary theory of the case was that H.H. was lying and that no physical contact
had occurred, offensive or otherwise. This theory was consistent with Chabrier’s trial testimony
denying that he had touched H.H. Although counsel engaged in a discussion with the venire
during jury selection on the difference between penetration and contact and, at the charge
conference, sought to obtain an instruction on offensive-contact assault, these efforts were an
attempt to establish, in the alternative, that if the jury believed that some contact had occurred,
then the contact had stopped short of penetration. We cannot conclude that pursuing alternative
defensive theories in this case fell below an objective standard of reasonableness.
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Moreover, “in the absence of evidence of counsel’s reasons for the challenged
conduct, an appellate court ‘commonly will assume a strategic motivation if any can possibly be
imagined.’” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting 3 W. LaFave,
et al., Criminal Procedure § 11.10(c) (2d. ed 1999)). We can imagine a strategic motivation here.
By asking for an instruction on offensive-contact assault, Chabrier preserved this issue for
appellate review. As one of our sister courts has observed, “We often see instances of attorneys
asking for charge language not currently sanctioned as a predicate for a later appeal to reshape
the law. Thus the request might well have been a matter of strategy.” Franco v. State, No. 08-
15-00254-CR, 2017 Tex. App. LEXIS 2177, at *12 (Tex. App.—El Paso Mar. 14, 2017, no pet.)
(not designated for publication). The record reflects that counsel attempted to distinguish
Chabrier’s case from this Court’s earlier decision in Mathis. Although his efforts were
unsuccessful, we cannot conclude that counsel was deficient for attempting to obtain an
instruction that could have resulted in a more favorable outcome for his client, either at trial or
on appeal.
Finally, Chabrier has failed to demonstrate prejudice, i.e., a reasonable probability
that absent counsel’s alleged deficiency, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694. “Strickland requires [the appellant] to establish, by a
preponderance of the evidence, that the harm resulting from trial counsel’s deficiency
undermines the confidence in the trial’s outcome.” Ex parte Parra, 420 S.W.3d 821, 828
(Tex. Crim. App. 2013). We cannot conclude on the record here that Chabrier was harmed in
any way by counsel’s request for an instruction on offensive-contact assault.
We overrule Chabrier’s second issue.
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CONCLUSION
We affirm the district court’s judgment of conviction.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Triana and Smith
Affirmed
Filed: November 14, 2019
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