Osmani Limonta-Diaz v. State ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00293-CR
Osmani Limonta-Diaz, Appellant
v.
The State of Texas, Appellee
FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-17-302345,
THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Osmani Limonta-Diaz of sexual assault, see Tex.
Penal Code § 22.011(a)(1)(A), and assessed his punishment at confinement for eleven years in
the Texas Department of Criminal Justice, see id. §§ 22.011(f), 12.33. On appeal, appellant
complains about error in the jury charge and challenges the sufficiency of the evidence. We
affirm the trial court’s judgment of conviction.
BACKGROUND
The jury heard evidence that in June of 2017, Rhea Percy went out one evening—
to dinner, to hear a band, and then to socialize with friends.1 Over the course of the evening,
1 The record reflects that the indictment and the trial court’s jury charge refer to the
complainant in this case using the pseudonym “Rhea Percy.” In this opinion, we refer to the
complainant using that pseudonym.
Percy had been drinking—wine, gin and tonic, specialty cocktails, beer, and shots—and towards
the end of the evening felt “intoxicated” and “drunk.” Percy ended the night at a bar called Pour
House, where she stayed until closing time. Even though Pour House was within walking
distance of her home (an apartment that she shared with her brother), she requested a ride
through the RideAustin app to get home because she “never walk[ed] home at night alone
drunk.” She did not recall where she met the rideshare driver or how she got into his car. The
last thing Percy remembered was talking to the bartender at Pour House as he put up the chairs.
Her memory was “fuzzy” due to her intoxication.
Percy’s next memory after the bar was trying to direct the rideshare driver to the
road for her apartment’s front door, which was different than the address for the apartment
complex. She then next remembered the driver being in the backseat on top of her. She was
lying on her back and felt her shirt being lifted up. The driver was heavy, and she felt “pinned
down.” She recalled trying to push the driver off of her with her arms. She next remembered
“tumbling” out of the car with her purse and concert poster. She went to her apartment and
banged on the door because she could not find her keys.
Percy’s brother, Eric, who had been upstairs in his room playing video games,
heard the knocking. He opened the door during the third round of knocks and found his sister in
disarray—her hair was “messed up,” her shirt was lifted up exposing her bra, and her pants were
unbuttoned and unzipped. Percy immediately told her brother that she had been raped. She was
“very distraught” and was “choking back tears.” Eric helped Percy inside and asked who had
raped her. She told him that it was her rideshare driver. At trial, Eric described Percy as
“drunk”; she slurred her words and had an unstable walk. When asked to describe the level of
Percy’s intoxication, he said, “I would say she was more intoxicated. She was drunk. As to the
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exact level, I would say it was probably a little more to the severe side of drunk, the more
extreme side.” Eric helped his sister to the couch and called 911. He talked to the dispatcher
while Percy laid with her head in his lap sobbing. Percy showed her brother the RideAustin app
on her phone, which gave the driver’s name—Osmani Diaz—and a picture of the driver as well
as the make of the car. Eric relayed as much information as possible to the 911 operator.
Emergency medical services and police responded to their apartment.
Upon arrival at the apartment, the EMS paramedic made contact with Percy, who
was on the couch “very emotionally distressed.” She was crying and upset and all she could tell
the paramedic was that she had been sexually assaulted by her rideshare driver; she could give no
details about the assault itself. She told the paramedic—who noticed several signs of
intoxication, including the smell of alcohol, slurred speech, and unsteady vision—that she had
been out drinking. The paramedic conducted a general assessment of Percy, which did not
indicate any life-threatening conditions; Percy had no complaint of pain or injury. He offered to
transport Percy to the hospital, but she declined because, he recalled, “she didn’t believe that
anything could be done to help her.”
When the police arrived at the apartment, Percy was, according to one responding
patrol officer, “hysterical,” “very withdrawn,” and “crying.” She was lying on the couch in her
brother’s lap and, the officer explained, did not want to speak to them.2 The officer did not
notice signs that Percy was intoxicated, but he testified that Percy was “very guarded” and “kept
a bit of distance” between them—in fact, she had her back to the officer during most of his
contact with her. One of the first things Percy said to the officer was, “I am drunk. I am to
2 The testimony of several witnesses, including Percy, reflected that, because of what she
had just experienced, Percy was upset that only male EMS personnel and male police officers
had responded to the 911 call and that she felt frightened by the all-male presence.
3
blame.” After Percy was able to calm down, she told the officer that she had been raped by her
rideshare driver. She showed him her phone, which was still open to the RideAustin app, and the
officer wrote down the information about the driver. Percy gave a general description of her
attacker but was only able to give a few details about the assault itself. She told the officer that
the driver had turned around and said, “I’m going to fuck you,” but she was unable to tell him
how appellant got into the back seat and got her clothes off. Percy also reported to the officer
that during the assault, the driver made derogatory comments to her before “placing his penis in
her vagina.” Specifically, she told the officer that, during the assault, the driver said that “white
women are whores and no one will believe you” and “I will fucking shame you.” Based on
Percy’s demeanor, the officer did not take what Percy described to be a consensual sexual
encounter.
The next day Percy went for a sexual assault forensic exam. The sexual assault
nurse examiner testified at trial about what Percy told her about the assault:
That she had been out drinking with some friends, that she had called some type
of Rideshare to pick her up, and that he drove her home, that he stopped kind of in
a different place than what she was expecting him to, and then he ended up — I
think she said he got in the backseat with her and forced himself on her.
Percy conveyed to the nurse that her memories of the night were “fuzzy” and that she
remembered the ride in “flashes.” She described the rideshare driver “holding [her] down” and
remarked that he was “significantly bigger than [her], so it wouldn’t have taken much.” Percy
also reported to the nurse that in addition to the alcohol that she had consumed that night, she
had taken her medication for depression, which, the nurse explained, could “potentiate the effects
of alcohol.”
4
The nurse testified about the injuries to Percy that she documented during the
exam. During the head-to-toe portion of exam, the nurse noted a small scratch on Percy’s left
breast and bruises on her legs. During Percy’s genital exam, the nurse observed redness on both
sides of the outer labia majora, several small abrasions underneath the clitoral hood, an abrasion
on the inside of the labia minora, multiple abrasions on the posterior fourchette, and pink areas
around the anal sphincter. The nurse also used evidentiary swabs to collect samples from Percy
for DNA testing. Subsequent forensic testing revealed semen on the smear from Percy’s cervix.
The nurse testified that the discovery of sperm cells on Percy’s cervix was consistent with penile
penetration of her female sexual organ and ejaculation by her assailant. DNA testing established
that the DNA profile of the contributor of the semen from Percy’s cervix matched appellant’s
DNA profile.
The police sex-crimes detective, who conducted the follow-up investigation,
spoke with Percy several days after the rideshare incident. At that time, Percy recalled less of
the sexual assault than she did the night of the offense because, the detective opined, she had
imbibed a lot of alcohol that night. Percy showed the rideshare information from her phone to
the detective. Through RideAustin records, the detective identified appellant as the driver and
contacted him for an interview. In the interview, appellant denied ever having had sexual
contact with any customer in his car, even a consensual sexual encounter.3 Appellant explicitly
denied that anything sexual had happened between him and Percy.
Following the investigation, appellant was arrested and subsequently indicted for
sexual assault. The State called twelve witnesses at trial: the 911 dispatcher, Percy’s brother,
3 The record reflects that the interview was conducted with the assistance of a
Spanish-speaking detective who interpreted.
5
the responding police officer, the responding EMS paramedic, the vice president of operations
for RideAustin, the sexual assault nurse examiner, the DNA analyst who conducted the DNA
testing in this case, the detective who presented a photo array to Percy,4 the detective who
interpreted during appellant’s police interview, the investigating sex-crimes detective, and an
investigator from the district attorney’s office. The defense called one witness: a forensic nurse
who reviewed the report of Percy’s sexual assault exam and took issue with the findings. The
jury found appellant guilty of sexual assault as charged in the indictment and assessed his
punishment at eleven years in prison. Appellant filed a motion for new trial, which was
overruled by operation of law. This appeal followed.
DISCUSSION
Appellant raises three points of error in this appeal. In his first two points of
error, he contends that the trial court erred by including certain statutory definitions of “without
consent” in the court’s jury charge. In his third point of error, appellant claims that the evidence
is insufficient to support his conviction for sexual assault because it failed to prove that his
sexual encounter with Percy was without her consent.
Jury-Charge Error
As applicable to the indictment in this case, a person commits sexual assault if he
“intentionally or knowingly causes the penetration of the . . . sexual organ of another person by
any means, without that person’s consent.” Tex. Penal Code § 22.011(a)(1)(A). The Penal Code
4 His testimony demonstrated that Percy was unable to identify anyone from the photo
array as the rideshare driver who sexually assaulted her.
6
sets forth several circumstances in which a sexual act is deemed to be without a person’s
consent. See id. § 22.011(b)(1)–(12). As relevant to this case,
A sexual assault . . . is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of
physical force, violence, or coercion;
...
(3) the other person has not consented and the actor knows the other person is
unconscious or physically unable to resist; [or]
...
(5) the other person has not consented and the actor knows the other person is
unaware that the sexual assault is occurring.
Id. § 22.011(b)(1), (3), (5).
During the jury-charge conference, the trial judge expressed his intent to include
an instruction based on the above three statutory definitions of “without consent.” Appellant
objected to the inclusion of the definitions relating to subsections (b)(3) and (b)(5), arguing that
no evidence supported the submission of those definitions. The court overruled appellant’s
objection and included an instruction in the jury charge that defined “without the consent of the
other person” as follows:
A sexual assault is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of
physical force or violence; or
(2) the other person has not consented and the actor knows the other person is
unconscious or physically unable to resist; [or]
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(3) the other person has not consented and the actor knows the other person is
unaware that the sexual assault is occurring.
In his first two points of error, appellant contends that the trial court erred when it
included instructions on two of the statutory definitions of “without consent” because, he
maintains, they were not supported by the evidence. Specifically, in his first point of error,
appellant argues that the jury should not have been instructed on the statutory definition of
“without consent” set forth in subsection (b)(3) because no evidence showed that Percy was
unconscious or physically unable to resist appellant. Similarly, in his second point of error, he
argues that the jury should not have been instructed on the statutory definition of “without
consent” set forth in subsection (b)(5) because there was no evidence showing that Percy was
unaware that she was engaging in a sexual act with appellant.
We review alleged jury charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal
depends on whether the jury charge error was preserved in the trial court. Mendez v. State,
545 S.W.3d 548, 552 (Tex. Crim. App. 2018); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of jury
charge error). If the jury charge error has been properly preserved by an objection or request for
instruction, see Tex. Code Crim. Proc. arts. 36.14, 36.15, as is the case here, reversal is required
if the appellant has suffered “some harm” from the error. Chambers v. State, 580 S.W.3d 149,
154 (Tex. Crim. App. 2019); Mendez, 545 S.W.3d at 552; see Almanza, 686 S.W.2d at 171.
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A trial court is statutorily obligated to instruct the jury on the “law applicable to
the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez, 545 S.W.3d at 552. Part of that duty
includes applying the law to the facts adduced at trial. Burnett v. State, 541 S.W.3d 77, 84 (Tex.
Crim. App. 2017); Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004). Thus,
although the trial court is obligated to include in the jury charge statutory definitions that
affect the meaning of elements of the crime, Arteaga, 521 S.W.3d at 334; Ouellette v. State,
353 S.W.3d 868, 870 (Tex. Crim. App. 2011), the charge must also be tailored to the facts
presented at trial. Burnett, 541 S.W.3d at 84. That is, the trial court must submit to the jury only
the portions of a statutory definition that are supported by the evidence; to do otherwise is error.
See id.; see also Gray, 152 S.W.3d at 128 (“Jury charges which fail to apply the law to the facts
adduced at trial are erroneous.”).
The Penal Code does not define either “unconscious” or “unaware,” but the plain
meaning of these adjectives connotes a lack of awareness, knowledge, or perception. See
Williams v. State, 270 S.W.3d 140, 146 (Tex. Crim. App. 2008) (stating that when Penal Code
does not define word, we “turn to the common, ordinary meaning of that word”); see,
e.g., Unconscious, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “unconscious” as
“without awareness; not conscious”); https://www.merriam-webster.com/dictionary/unconscious
(defining “unconscious” as “not knowing or perceiving: not aware”);
https://www.ahdictionary.com/word/search.html?q=unconscious (defining “unaware” as “not
aware or cognizant”); https://www.dictionary.com/browse/unconscious (defining “unaware” as
“not aware or conscious; unconscious”).
The evidence at trial showed that Percy was intoxicated. She expressed that,
given her intoxication, she was incapable of consenting to any sexual activity that night. She
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also denied that it was possible that she took off her own clothes or that she said something to
appellant that indicated a willingness to have sex with him.
The evidence also demonstrated that, due to her intoxication, Percy had lapses in
awareness, perception, and knowledge throughout the rideshare, which resulted in memory gaps.
For example, Percy remembered being in the bar at closing time but not requesting a rideshare or
getting into appellant’s car. The patrol officer’s testimony showed that shortly after the incident,
Percy recalled the driver turning around and saying, in an offensive manner, that he was going to
have sex with her, but she could not tell the officer how appellant got in the back seat. She
remembered being on her back “pinned down” and described derogatory comments that
appellant made to her before he put his penis in her vagina, but she could not recall how
appellant got her clothes off or appellant taking his clothes off. When talking to the officer and
the paramedic, she remembered that appellant had used a condom. Percy also remembered
appellant being on top of her, feeling him lifting up her shirt, and trying to push him off with her
arms, but then her “next memory” was “tumbling out of the car.” The following day, Percy told
the sexual assault nurse examiner that she “thought” that appellant had kissed her and that he
touched her with his hands, but she could not recall, at that time, the exact physical contact. Nor
could she remember whether appellant had penetrated her vaginally, anally, or orally or if he had
used a condom. The sexual assault nurse examiner documented a loss of consciousness in the
SAFE report, which she explained could be either “somebody remembering that they were out
and woke up or that they have memory gaps.”
As noted above, the evidence reflected that Percy attempted to push appellant off
of her at some point during the incident. The nurse testified that alcohol acts as a restraint
because “when someone has had a lot to drink,” their ability to have strength and coordination in
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their movements is affected. She explained that alcohol is “something that would prohibit
someone from having full muscle abilities to do what they need to do for movement.” The fact
that Percy tried at some point to resist but her clothes were not torn, she suffered no injuries, and
she was ultimately unsuccessful in pushing appellant off, supports the inference that she was
unable to physically resist because she was impaired by her level of intoxication.
Because the evidence showed that Percy was intoxicated during the rideshare and
indicated that she experienced periods of unawareness because of it, the evidence raised fact
issues as to whether Percy had consented to having sexual intercourse with appellant and
whether she was unconscious, physically unable to resist, or unaware that the sexual assault was
occurring. Accordingly, the trial court did not err by including statutory definitions of “without
consent” based on subsections (b)(3) and (b)(5) of Penal Code section 22.011 in the jury-charge
instruction defining “without consent.” See Ouellette, 353 S.W.3d at 870 (affirming submission
of particular statutory definition of intoxication because “while evidence that the appellant was
intoxicated by drugs was circumstantial and not obviously overwhelming, it is nonetheless
present in the record”); cf. Ex parte Ingram, 533 S.W.3d 887, 892 (Tex. Crim. App. 2017)
(clarifying that jury-charge instruction on anti-defensive issue is appropriate when some
evidence at trial raises it); Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013)
(explaining that “even a minimum quantity of evidence is sufficient to raise a defense as long as
the evidence would support a rational jury finding as to the defense” (citing Shaw v. State,
243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007))). We overrule appellant’s first two points
of error.
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Sufficiency of the Evidence
In his third point of error, appellant asserts that the evidence is insufficient to
prove that he sexually assaulted Percy because, according to appellant, it failed to prove that he
penetrated Percy’s sexual organ without her consent.
Due process requires that the State prove, beyond a reasonable doubt, every
element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State,
561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence
to support a conviction, we consider all the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and the reasonable inferences therefrom, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see
Musacchio v. United States, — U.S. —, 136 S. Ct. 709 (2016); Johnson v. State, 560 S.W.3d 224,
226 (Tex. Crim. App. 2018). In our sufficiency review, we consider all the evidence in the
record, whether direct or circumstantial, properly or improperly admitted, or submitted by the
prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013,
no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences in a manner that
supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). We consider only whether the factfinder reached a rational decision. Arroyo
v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84, 89
(Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to
12
guarding against the rare occurrence when a fact finder does not act rationally” (quoting Isassi
v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))).
The trier of fact is the sole judge of the weight and credibility of the evidence.
See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,
33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is
the exclusive judge of the facts”). Thus, when performing an evidentiary-sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our judgment for
that of the factfinder. Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188,
192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations
of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State,
473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When the record supports conflicting reasonable
inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary, 507 S.W.3d at 757; see Musacchio,
136 S. Ct. at 715 (reaffirming that appellate sufficiency review “does not intrude on the jury’s
role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We must
“determine whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.”
Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at
778); accord Arroyo, 559 S.W.3d at 487.
Because factfinders are permitted to make reasonable inferences, “[i]t is not
necessary that the evidence directly proves the defendant’s guilt; circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence
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alone can be sufficient to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.
App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); accord Johnson,
560 S.W.3d at 226. The standard of review is the same for direct and circumstantial evidence
cases. Jenkins, 493 S.W.3d at 599; Nowlin, 473 S.W.3d at 317.
The indictment in this case alleged that appellant “did then and there intentionally
and knowingly cause the penetration of the female sexual organ of Rhea Percy (a pseudonym),
with the sexual organ of the Defendant, without the consent of Rhea Percy (a pseudonym).”5 See
Tex. Penal Code § 22.011(a)(1)(A). In prosecuting a sexual assault, the State has the burden to
prove that the sexual act at issue was not consensual. Davis v. State, 581 S.W.3d 885, 889 (Tex.
App.—Dallas 2019, pet. ref’d); see Moon v. State, 607 S.W.2d 569, 570 (Tex. Crim. App. 1980)
(“Lack of consent to the sexual intercourse in a [sexual-assault] case is an essential element of
the State’s case.”). As previously discussed in our analysis of appellant’s first two points of
error, the Penal Code sets forth several circumstances in which a sexual assault is deemed to be
without a person’s consent, and the trial court instructed the jury on three. Appellant challenges
the sufficiency of the evidence as to all three manners of “without consent” submitted to the jury.
He first argues that no evidence adduced at trial showed that appellant used
physical force or violence against Percy to compel her to submit to or participate in sexual
intercourse with him. See Tex. Penal Code § 22.011(b)(1). He analyzes the testimony of each
5 The indictment tracked the language of the sexual-assault statute that defines the
offense but did not allege any particular manner of “without consent” based on the listed
statutory definitions. However, when a statutory term or element is defined by statute, the
charging instrument does not need to allege the definition of the term or element. State v. Ross,
573 S.W.3d 817, 833 (Tex. Crim. App. 2019); State v. Zuniga, 512 S.W.3d 902, 907 (Tex. Crim.
App. 2017); Geter v. State, 779 S.W.2d 403, 405 (Tex. Crim. App. 1989). Typically, the
definitions of terms and elements are regarded as evidentiary matters. Ross, 573 S.W.3d at 833;
Zuniga, 512 S.W.3d at 907; Marrs v. State, 647 S.W.2d 286, 289 (Tex. Crim. App. 1983).
14
witness, noting the evidence that indicated a lack of injuries or torn clothing, and asserts that the
testimony of each witness failed to prove that appellant used force or violence to compel Percy to
submit to him. However, when examining the legal sufficiency of the evidence, the reviewing
court must not engage in a “divide and conquer” strategy but must consider the cumulative force
of all the evidence. Zuniga, 551 S.W.3d at 733; Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.
App. 2017); see Murray, 457 S.W.3d at 448 (observing that “[a]ppellate courts are not permitted
to use a ‘divide and conquer’ strategy for evaluating sufficiency of the evidence” (quoting
Hacker v. State, 389 S.W.3d 860, 873 (Tex. Crim. App. 2013)). More importantly, “[t]here are
no set criteria by which it can be determined that force either has or has not been applied in any
particular [sexual-assault] case, but rather, the facts of each individual case determine the issue.”
Brown v. State, 576 S.W.2d 820, 823 (Tex. Crim. App. 1978); see, e.g., Edwards v. State,
97 S.W.3d 279, 291 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“Explicit verbal threats
and physical injury are not necessary to prove a defendant compelled a victim’s participation.”).
Percy testified that appellant was on top of her while she was on her back in the
back seat of his car. He was “heavy,” and she felt “pinned down.” She also said that she tried to
push appellant off, and she demonstrated to the jury how she attempted to push him off.
Immediately after the incident, Percy told her brother that she had been “raped,” which is a term
that implies force used to compel sexual activity against a person’s will. See, e.g.,
https://www.merriam-webster.com/dictionary/rape (defining “rape” as “unlawful sexual activity
and usually sexual intercourse carried out forcibly . . . against a person’s will”);
https://www.ahdictionary.com/word/search.html?q=rape (defining “rape” as “crime of using
force or the threat of force to compel a person to submit to sexual intercourse”). When
15
describing the assault to the sexual assault nurse examiner, Percy reported that appellant “forced”
himself on her.
In addition, the nurse explained at trial that body weight can be used as physical
force and a way to restrict movement. The evidence reflected that Percy is a petite woman who
is 5’1” tall and weighed 122 pounds at the time of the incident. She described her assailant as
being 5’7’’ or 5’8” and weighing approximately 200 pounds. The evidence established that
appellant is 5’8’’ and heavyset. While appellant’s specific weight does not appear in the record,
the jury had the opportunity to view both Percy and appellant and compare their physical sizes.
Given the disparity of their sizes, appellant’s position on top of Percy, and her unsuccessful
attempts to push appellant off, the jury could reasonably infer that appellant restrained Percy
with his body weight and that this constituted a use of physical force.
Further, the evidence of Percy’s physical appearance and demeanor immediately
after the incident indicated that she was compelled to submit to the sexual intercourse. Percy’s
brother observed that she was disheveled—her hair was “messed up,” her shirt was lifted up
exposing her bra, and her pants were unbuttoned and unzipped—and that she was “very
distraught” and “clearly under a lot of duress.” The paramedic and responding police officer
confirmed that Percy was “very emotionally distressed” and “hysterical.” In addition, the
evidence of injuries to and around Percy’s sexual organ—redness and multiple abrasions—
corroborates the notion that force was used to achieve penetration of her sexual organ. Thus,
from the combined and cumulative force of the evidence, and reasonable inferences from it, the
jury could rationally find that appellant compelled Percy to submit to or participate in sexual
intercourse with him by using physical force.
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When the jury charge authorizes the jury to convict the defendant on more than
one theory, as it did in this case, the evidence is sufficient to support a conviction if the evidence
is sufficient to support conviction for any theory authorized by the jury charge. Campbell
v. State, 426 S.W.3d 780, 786 (Tex. Crim. App. 2014); Anderson v. State, 416 S.W.3d 884, 889
(Tex. Crim. App. 2013); see Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004)
(“[W]hen multiple theories are submitted to the jury, the evidence is sufficient to support a
conviction so long as the evidence is sufficient to support conviction for one of the theories
submitted to the jury.”). Thus, because the evidence supported a finding that appellant’s sexual
intercourse with Percy was without her consent under subsection (b)(1) of Penal Code section
22.011, the evidence was sufficient to support appellant’s conviction for sexual assault.
Nevertheless, we further conclude that the evidence also supports a jury finding that the sexual
intercourse was without Percy’s consent under subsections (b)(3) and (b)(5) of Penal Code
section 22.011 as well.
Concerning the two other manners of “without consent” submitted to the jury,
appellant asserts that the evidence failed to show that he knew that Percy was unconscious,
physically unable to resist, or unaware that the sexual assault was occurring. He argues that
“[t]his is not the type of situation where the complainant was so drunk that she was unconscious
or unaware of what was occurring,” pointing to evidence that Percy told others that she had been
violated—her subsequent disclosure to her brother that she had been raped and her identification
of who raped her, her description to the police officer of the derogatory comments that appellant
made before he “put his penis in her vagina,” and her report to the paramedic and the police
officer that appellant had worn a condom. However, the evidence repeatedly demonstrated that
Percy’s memory surrounding the incident was “fuzzy,” that she remembered just “flashes” of
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what happened, and that she later recalled only “bits and pieces.” In the exercise of its role as
factfinder, the jury was entitled to believe the evidence concerning Percy’s intoxicated state and
determine how, or whether, it impacted her experience that night. As discussed previously,
multiple witnesses testified about Percy’s intoxication, including her brother who observed,
immediately after the incident, that she was on the “more severe side” and “more extreme side”
of “drunk,” seemed unaware that her clothing was in disarray, and was unsteady to the point that
he had to help her to the couch. Given the evidence of Percy’s intoxication, the jury could
reasonably conclude that her memory gaps represented times that she was unaware due to her
level of intoxication. See Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014)
(recognizing that jurors may use common sense and apply common knowledge, observation, and
experience gained in ordinary affairs of life when drawing inferences from evidence); Boston
v. State, 373 S.W.3d 832, 837 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim.
App. 2013) (same).
Appellant maintains that Percy’s testimony that she was aware of what was
happening and that she was not unconscious demonstrated that she was “not totally unconscious
and as a result unable to fend off an attacker.” However, nothing in the statute requires “total” or
extended unconsciousness. Further, Percy did not testify that she was not unconscious. Rather,
her testimony indicated that she was “not passed out unconscious in the back of the car” because
she remembered being in the car; that she was “not completely unconscious” (but was not able to
“think things through”); and that she did not recall being unconscious. Similarly, Percy did not
testify that she was aware that a sexual assault was happening. Instead, her testimony indicated
that “at one point” she was aware that “something” was happening to her and that she was
“aware enough” at times to understand that “some sort of sex act was occurring.” However, as
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noted previously, the record repeatedly demonstrated that, due to her intoxication, Percy
experienced periods of unawareness during the rideshare.
Moreover, even had Percy testified as appellant claims, the jury was entitled to
resolve any evidentiary inconsistencies between her testimony and the other evidence
demonstrating her intoxication and periods of unawareness in order to determine whether Percy
was unconscious, physically unable to resist, or unaware of the sexual assault occurring. See
Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (observing that jury “may accept
one version of the facts and reject another, and it may reject any part of a witness’s testimony”).
We must defer to the jury’s resolution of any alleged conflicts or inconsistencies. Zuniga,
551 S.W.3d at 733; see Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (“A
reviewing court is thus ‘required to defer to the jury’s credibility and weight determinations.’”
quoting Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)).
Finally, the evidence showed that appellant picked Percy up at a bar at closing
time. She had called for a rideshare because she was too drunk to walk home. Both Percy’s
brother and the paramedic testified that Percy exhibited observable signs of intoxication, which
indicates that her intoxication was apparent to others. The jury could have inferred that it was
apparent to appellant as well. Thus, viewing the evidence in the light most favorable to the
verdict, a rational jury could have found beyond a reasonable doubt that, given Percy’s
intoxication, appellant had sex with Percy while he knew she was unconscious, physically unable
to resist, or unaware that the sexual assault was occurring. See Elliott v. State, 858 S.W.2d 478,
485 (Tex. Crim. App. 1993) (explaining that if assent is not given and “actor knows that the
victim’s physical impairment is such that resistance is not reasonably to be expected, sexual
intercourse is ‘without consent’”).
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Appellant concludes his sufficiency challenge by asserting that there was no
evidence to “disprove” his defense that he and Percy engaged in consensual sex in the backseat
of his car. This assertion ignores the evidence of statements that appellant made to the detective
in which he denied having any sexual encounter—consensual or nonconsensual—with Percy, or
any rideshare customer, in his car. More importantly, however, the question in evaluating the
sufficiency of the evidence is not whether the evidence disproves the defensive theory but
whether the jury’s finding of guilt was justified considering the evidence that was admitted at
trial. The circumstantial evidence in this case and reasonable inferences from it support a
rational finding that Percy did not consent to sexual intercourse with appellant but that he
compelled her to submit through the use of physical force or that, due to her intoxication, Percy
was unconscious, physically unable to resist, or unaware that the sexual assault was occurring.
Therefore, based on the combined and cumulative force of the circumstantial evidence along
with the reasonable inferences drawn from it, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that appellant’s sexual intercourse with Percy was without her
consent. Accordingly, we hold that the evidence is sufficient to support appellant’s conviction
for sexual assault. See Nisbett v. State, 552 S.W.3d 244, 266–67 (Tex. Crim. App. 2018). We
overrule appellant’s third point of error.
CONCLUSION
Having concluded that the trial court did not err by including the complained-of
statutory definitions of “without consent” in the jury charge and that the evidence is sufficient to
support appellant’s conviction for sexual assault, we affirm the trial court’s judgment
of conviction.
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__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: February 5, 2020
Do Not Publish
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