Brian Deshotel v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-199 CR ____________________ BRIAN DESHOTEL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 04-01-00259 CR MEMORANDUM OPINION Appellant brings this appeal from his sexual assault conviction and raises three issues. He complains of the evidence's factual insufficiency, the prosecution's improper jury argument, and the trial court's sentencing error. We affirm. The jury found Brian Deshotel guilty of sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon 2003). In addition, he pled true to the indictment's enhancement paragraph regarding his previous conviction for burglary of a habitation with intent to commit aggravated assault. After hearing additional evidence on punishment, the trial court assessed Deshotel's punishment and sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division. Around 1 a.m. on December 27, 1996, CDB reported to law enforcement officers that she had been raped after her male assailant drove her to a wooded area nearby. Emergency personnel came to the scene and took CDB to a hospital for examination and evidence collection. While CDB was at the hospital, medical personnel collected a vaginal swab from her. In December 2003, Deshotel was identified as CDB's attacker after a laboratory comparison of two DNA profiles. One profile came from Deshotel's blood sample drawn in September 2003 pursuant to a search warrant. (1) The other profile came from sperm found on CDB's vaginal swab collected on the night of the 1996 offense. The comparison showed that the sperm collected from the vaginal specimen was Deshotel's. In presenting his insufficiency argument, Deshotel contends that he did not commit sexual assault because CDB and he had consensual sex on the evening in question. The offense of sexual assault occurs when a person "intentionally or knowingly causes the penetration of the . . . female sexual organ of another person by any means, without that person's consent." Tex. Pen. Code Ann. § 22.011 (a)(1)(A)(Vernon 2003). (2) As Deshotel admits he had sex with CDB, the only element of the offense at issue is whether the sex occurred without CDB's consent. Thus, we must determine the factual sufficiency of the evidence showing that CDB did not consent to having sex with Deshotel. In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard of proof could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004)(citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We recognize that the jury may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). Evidence Supporting The Verdict At trial, CDB testified that on the evening of her rape, she first went to a pool hall and then to a friend's house. As her 1 a.m. curfew time approached, she went to a payphone to seek a ride home because her friend did not have a phone or vehicle. CDB further stated that, while she was at the payphone, an unknown person (later identified as Deshotel) drove up in a "brownish" Ford truck and asked where the hospital was. This person had his mouth wired shut. (3) CDB testified that she left with Deshotel because she needed a ride home. Deshotel drove by CDB's home, and did not stop. CDB testified that instead Deshotel put a knife to her throat and drove to the woods. CDB further testified that Deshotel started smoking "something in a pipe," ripped her shirt off, tied her hands behind her back with her shirt, and started raping her. CDB told Deshotel to stop, but he "[j]ust kept going." She did not want to have sex with Deshotel but could not get up or out of the truck because he was "laying on [her] legs." After a while, Deshotel stopped and CDB put her clothes on and got out of the truck. She stated that she "went and talked to people and told them what happened." The State presented several disinterested witnesses who saw CDB shortly after she was raped. These witnesses were Robert Freund, Grady Perry, David Bell, Kent Simon, and Dr. Jed Shay. They all talked with CDB, observed her appearance, and observed her demeanor. Robert Freund and Grady Perry, night-shift employees of a packing company close to the wooded area where CDB was raped, were the first persons to see her after she walked out of the woods. Freund was outside the company building at 1 a.m. taking a smoke break when CDB approached and told him she had been raped. Freund testified that CDB's blouse was ripped, exposing part of her brassiere, and that she appeared visibly shaken and upset. Perry testified that after he was called outside by Freund, he called 9-1-1. To Perry, CDB looked "really troubled." Her shirt was "very badly torn," and she was not speaking. Instead, she was crying. David Bell, a corporal with the Montgomery County Sheriff's Department, and Kent Simon, an emergency medical employee, responded to the 9-1-1 call. Bell testified that he talked with CDB, who was wearing a torn tee shirt and was visibly shaken and upset. CDB told Bell that she was raped by a white male whose mouth was wired shut because of a broken jaw and that he drove her to a wooded area and sexually assaulted her. The wooded area was close to the building where she approached Freund. She described her attacker's vehicle as a dark colored pickup, possibly a Ford. (4) Simon testified that CDB appeared shaken, nervous, upset, and had an irregularly high pulse rate. Simon took her to the hospital by ambulance for an examination and evidence collection for rape. After arriving at the hospital, CDB was seen in the emergency room by Dr. Jed Shay. He testified that his records reflected that CDB presented in distress and complained of being sexually assaulted. Her pulse was 110, higher than normal, and she was crying and appeared depressed. She reported to Dr. Shay that an unknown male took her into the woods where he sexually assaulted her. Dr. Shay testified that a white smear was present in her vaginal area; that there were red areas on her neck, upper left arm, and wrist; and that there was redness on her chest along with a contusion on her right shoulder. Dr. Shay's clinical impression was sexual assault. He testified that emergency room personnel collected evidence from CDB and placed it in a sexual assault kit. Evidence Against The Verdict Deshotel acknowledges that the evidence preponderates in favor of his conviction, but contends that the verdict is against the great weight of the evidence as to whether the parties had a consensual relationship. According to Deshotel's trial testimony, he was acquainted with CDB and had an intimate relationship with her during the summer of 1996 when he lived in an apartment with James McNutt. (5) He testified that, on the night of her assault, CDB contacted him and asked him for a ride home. Deshotel said he picked up CDB in his truck and then they drove to an area located near warehouses. Deshotel stated that he and CDB talked and kissed, and eventually had sex. Afterwards, they argued and Deshotel drove away by himself, leaving CDB in the area where they had parked. Deshotel also testified that he was unaware of CDB's rape claim until 2002. Deshotel attempted to bolster his prior relationship contention with testimony from two witnesses - his father, James Deshotel, and his former roommate, James McNutt. James McNutt testified that he shared an apartment with Deshotel in the summer of 1996 and that he was present when Deshotel first met CDB. In the week that followed the meeting, McNutt saw CDB at Deshotel's apartment. McNutt also stated that he had seen CDB driving a Lincoln Town Car. However, on cross-examination, McNutt admitted he was in jail during the summer of 1996 and that he could not remember when he shared an apartment with Deshotel. Then, on redirect, McNutt maintained that in the summer of 1996, he had absconded from a rehabilitation unit for two weeks and lived with Deshotel for that time before he was returned to jail. On cross-examination, McNutt also admitted that he had a criminal history and drug problems and further had failed to rehabilitate himself during probation and parole. In addition, other witnesses contradicted parts of McNutt's testimony. McNutt testified that in the summer of 1996 when he and Deshotel met CDB, she was with a younger brother who needed seizure medication. However, CDB's mother testified that CDB's brother did not have seizures and did not need medication. McNutt also testified that on one occasion he drove CDB's car to her parents' home on Highway 1960, past the Willowbrook Mall. However, in 1996, CDB and her family lived in River Plantation located in Montgomery County, according to her stepfather. James Deshotel, appellant's father, testified that he met CDB one week-end at his home, but did not specifically give a date for the meeting. However, he was "very sure" that CDB was the girl he met. He also testified that he "absolutely" did not want his son going back to prison, but contended he would not lie to help his son. CBD's testimony that she was raped is supported by the disinterested witnesses who observed her appearance - she was wearing torn clothing - and observed her behavior - she was shaken and upset; she was crying, nervous, troubled, and not speaking. Physically, she had an abnormally high pulse rate, had several red areas on her body and a contusion on her right shoulder. She also had sperm present in her vaginal area. Deshotel, however, contends that the great weight of the evidence shows he and CDB had a consensual relationship. He relies on his own testimony as well as that of his father, James Deshotel and McNutt. As to McNutt, his credibility was severely impeached during cross-examination and James Deshotel's testimony was vague on when he met CDB. The jury could have dismissed James Deshotel's identification of CDB as the wishful thinking of a father who did not want to see his son go to prison. Moreover, the jury was entitled to reject entirely the testimony of these witnesses. See Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). It is the province of the jury to evaluate the credibility and demeanor of witnesses and determine the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Deshotel also attacks CDB's credibility regarding her description of his truck's color and of her attacker. While CDB described the truck as "dark" and "brownish," Deshotel drove a green truck. Further, on cross-examination, CDB acknowledged telling the officers that her assailant was 5 feet, 7 inches tall and weighed 140 pounds while Deshotel testified at trial that he was 5 feet, 11 inches and weighed 240 pounds. Deshotel did not testify about his weight at the time of CDB's attack. The jury may have considered that these discrepancies in CDB's testimony were related to her attacker's identity rather than to the contested consent issue, and, thus, were unimportant. Deshotel admitted having sex with CDB on the night she reported the assault and the DNA test of the vaginal swab taken from CDB establishes that Deshotel was the person with whom CDB had sex shortly before she reported the assault. As to Deshotel's testimony that the sex with CDB that evening was consensual, it is contradicted by CDB's testimony. The jury determines what weight to give to contradictory testimonial evidence because such evidence involves evaluating the witnesses' credibility and demeanor. See Saxer v. State 115 S.W.3d 765, 773 (Tex. App.--Beaumont 2003, pet. ref'd). We do not substitute our own judgment for that of the jury. Jones, 944 S.W.2d at 648. Instead, we give due deference to the jury's decision to credit CDB's graphic testimony showing that she did not consent to have sex with Deshotel that night. Cain, 958 S.W.2d at 407-09. We find that the evidence that CDB did not consent is strong enough to preclude a "clearly wrong and manifestly unjust" verdict and we find that Deshotel's contrary evidence on consent is not "so strong that the standard of proof beyond a reasonable doubt" was not met. See Escamilla, 143 S.W.3d at 817. Accordingly, we overrule issue one. In issue two, Deshotel contends the trial court committed reversible error in overruling his objection to improper jury argument. In the State's closing argument, the following exchange occurred: Prosecutor: And sure, there was no blood, there [were] no broken bones. It's because she didn't resist. And we are indeed fortunate that she didn't resist, because had she resisted his force, there's no telling what type of case we'd be trying today. Defense Counsel: Objection to speculation. The Court: Excuse me? Defense Counsel: Improper jury argument. The Court: Overruled. The record reflects that counsel's objection to "speculation" was either not heard or not understood by the trial court. In response to the trial court's query, "Excuse me?," counsel only said "Improper jury argument." Defense counsel said nothing to indicate why the prosecutor's argument was improper. The trial court correctly overruled the objection as it is only a general objection that presents nothing for review. See Huggins v. State, 795 S.W.2d 909, 912 (Tex. App.--Beaumont 1990, pet. ref'd)(citing Earnhart v. State, 582 S.W.2d 444 (Tex. Crim. App. 1979)). Issue two is overruled. In issue three, Deshotel says the trial court committed reversible error in sentencing him, over his objection, without the preparation of a presentence investigation report that he had requested. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(g) (Vernon Supp. 2005). The following exchange between the trial court and counsel occurred: Defense counsel: Judge, we object to going forward without the PSI that was ordered by the Court even though it was a short form. At this time, I would like to see what that would be. The Court: PSI in the short form mainly is what your client would tell them. I don't see what harm it has versus not proceeding with the PSI. Defense counsel: All right, Judge. The Court: That is denied. All right. I need to find the indictment. In Whitelaw v. State, 29 S.W.3d 129, 134 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals held that the trial court must order preparation of a PSI report in a felony case when the defendant requests one. However, the State contends that Deshotel agreed to proceed without the report. The State asserts that Deshotel either invited the trial court to err or failed to preserve error by not stating a specific objection. The State alternatively contends that the trial court's error, if any, was harmless. Here, it is not clear that appellant either invited error or agreed to move forward without the PSI. Defense counsel's statement ("All right, Judge") may simply have been an acknowledgment that the trial court had made its determination. Defense counsel did not clearly request the trial court to undertake the action about which he now complains. Compare Prystash v. State, 3 S.W.3d 522, 532 (Tex. Crim. App. 1999)(holding invited error existed when appellant complained of the trial court's deleting a jury charge as he requested). Further, trial counsel stated the grounds of his objection with sufficient specificity ("we object to going forward without the PSI") and he obtained a ruling on his objection as required by the Rules of Appellate Procedure. See Tex. R. App. P. 33.1(a). Thus, while we find the trial court erred in proceeding without the PSI, we further must determine if the error was harmful. See Whitelaw v. State, 29 S.W.3d at 132 (observing that having a full punishment hearing may impact determination of whether error was harmless). Nonconstitutional error is harmless if it did not affect the defendant's substantial rights. Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). But when the record as a whole shows that the error either did not influence the verdict or only slightly affected it, we consider the error harmless and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). When determining if the error affected the punishment decision, we consider the entire record, the nature of the decision's supporting evidence, the type of error involved, and the error's relationship to other record evidence. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Yarbrough v. State, 57 S.W.3d 611,619 (Tex. App.--Texarkana 2001, pet. ref'd)(applying Morales to PSI error). As the Yarbrough Court explained: The purpose of a PSI report is to provide the trial court with information regarding "the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge." Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a). The only conceivable harm to [the defendant] that could result from the trial court's refusal to order a PSI report would be [the] inability to call the judge's attention to favorable information about [defendant's] character or social history that could potentially contribute to a lenient sentence. Yarbrough, 57 S.W.3d at 619. Deshotel had a full hearing on punishment. The trial court heard the testimony of Deshotel's parole officer. Further, Deshotel's testimony from the guilt-innocence phase was re-offered by the State at punishment. Also, the trial court heard potentially mitigating evidence from Deshotel's father and mother. They attested to their son's non-violent temperament, his attempts to improve himself by taking courses and receiving diplomas in various vocational fields, his politeness and helpfulness at home, and his attempts to get help for his drug abuse problem. Both parents asked the trial court for leniency. Further, the trial court did not preclude the defense from offering additional witnesses at the punishment hearing. The evidence offered by Deshotel's parents at the punishment hearing, however, must be considered in the context of the evidence from the guilt-innocence phase, all of which was re-offered by the State. We previously evaluated this evidence in issue one and need not re-evaluate it. But, we note that Deshotel himself, in the guilt-innocence phase, admitted he was on parole at the time of CDB's assault and had used crack cocaine often. He further testified that he had been convicted of credit card abuse, robbery, and burglary with intent to commit aggravated assault and had been sentenced to a total of fourteen years in prison. Deshotel also admitted that he had been in rehabilitation for drug abuse and that his parole was revoked the year before his trial. Deshotel was allowed to present evidence to persuade the trial court to be lenient. We find he has not shown harm in not having the report available at sentencing. Issue three is overruled. Accordingly, we affirm the jury's verdict and the trial court's judgment. AFFIRMED. ___________________________ HOLLIS HORTON Justice Submitted on June 28, 2005 Opinion Delivered August 31, 2005 Do Not Publish Before Gaultney, Kreger and Horton, JJ. 1. Deshotel testified that while he was in prison in 1999, his blood sample was taken for inclusion in the Texas DNA data base. After Deshotel's 1999 sample was matched to the semen sample collected from CDB, another blood sample was taken from him. 2. The language of section 22.011 (a)(1)(A) contained in the 1996 statute is identical to that contained in Vernon's main 2003 volume. 3. In early December, 1996, Deshotel underwent surgery on his lower jaw and his mouth was wired shut. The wires were removed on January 17, 1997. 4. In 1996, Deshotel drove a 1994 green Ford truck. 5. According to Deshotel's parole officer, however, Deshotel was living with his father in 1996.