Abel Trevino v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Abel Trevino Appellant Vs. Nos. 11-01-00081-CR & 11-01-00082-CR B Appeals from Howard County State of Texas Appellee The jury convicted Abel Trevino of two counts of sexual assault. The jury also found that appellant had previously been convicted of the offenses of murder and aggravated sexual assault involving a child and assessed his punishment at life imprisonment in each cause. We affirm. Appellant lived with the victim for approximately three and one-half years. In March 2000, the victim and appellant ceased living together. However, appellant continued to go to the victim=s home following the breakup. He visited the victim=s granddaughter there, and he also continued to do things around the house such as mow the lawn and repair vehicles. On the date of the offense, appellant went to the victim=s home. Appellant insisted that the victim go to his house with him; she did. The victim testified that, when they were at appellant=s house, he slapped her repeatedly, took her into his bedroom, took off her clothes, and forced her to have vaginal and oral sex with him. Two days later, the victim called the police. The day after she filed the original report, the victim talked with Jim Rider, a police detective. Detective Rider testified that the victim told him that appellant beat her and that he caused her nose to bleed, bruised her, and gave her a black eye as a result of the offenses. No one performed a rape examination, nor did anyone collect any evidence from appellant=s home. Detective Rider testified that appellant later admitted that he hit the victim but that he denied sexually assaulting her because, according to appellant, sex with the victim was Arepulsive.@ Faustino Gonzales, appellant=s coworker, also testified. Gonzales said that appellant told him that he hit the victim but that he never mentioned having sex with her. In his first point of error, appellant asserts that the trial court erred when it failed to charge the jury on the lesser included offense of assault. Appellant requested a charge on simple assault. A charge on a lesser included offense is required when the lesser included offense is included within the proof necessary to establish the offense charged and when there is some evidence in the record that the defendant is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr.App.1981). There must be some evidence in the record that would allow a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser included offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Cr.App.1997), citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Cr.App.), cert. den=d, 510 U.S. 919 (1993). Appellant recognizes that there are two different ways in which the evidence can indicate that he is guilty only of a lesser included offense. See Saunders v. State, 840 S.W.2d 390, 391 (Tex.Cr.App.1992). AFirst, there may be evidence which refutes or negates other evidence establishing the greater offense.@ Saunders v. State, supra at 391. Here, Detective Rider=s testimony is that appellant denied the sexual assault. That may be evidence that he denied committing the sexual assault outside of court, but it is not evidence that he did not commit the acts. The testimony of Gonzales is that appellant never mentioned the sexual assault; however, that is not evidence that appellant did not commit the acts. The testimony of Detective Rider and Gonzales does not constitute any evidence that appellant is only guilty of assault and does not refute the victim=s testimony that she was sexually assaulted. ASecond, a defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to different interpretations.@ Saunders v. State, supra at 392. In this case, the only evidence as to the occurrence of a sexual assault that was presented to the jury was the victim=s testimony that she was sexually assaulted by appellant. The evidence is not subject to different interpretations. The trial court did not err when it denied appellant=s requested instruction on the lesser included offense of assault. Appellant=s first point of error is overruled. Appellant=s second point of error challenges the indictments. Appellant maintains that the State alleged no offense in the indictments and that the State failed to adequately inform appellant of the charge against him. He claims that there was no notice of the manner and means of lack of consent. During trial, appellant=s counsel moved to quash the indictment alleging that it did not set out the manner and means by which appellant acted without consent. Appellant did not make this motion until after all of the witnesses had testified at trial. The trial court denied the motion. The State points out that appellant waived the right to appeal on this point of error. If an appellant: [D]oes not object to a defect, error, or irregularity of form or substance in an indictment...before the date on which the trial on the merits commences, he waives...the right to object...and he may not raise the objection on appeal or in any other postconviction proceeding. (Emphasis added) TEX. CODE CRIM. PRO. ANN. art. 1.14(b) (Vernon Supp. 2001). Where a motion to quash is not timely presented, nothing is preserved for review. See Anderson v. State, 615 S.W.2d 745, 746 (Tex.Cr.App.1981). Moreover, an indictment is sufficient Aif it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.@ Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Cr.App.1997). The language in both indictments tracks the language of the statute, TEX. PENAL CODE ANN. ' 22.011 (Vernon Supp. 2001), with enough specificity so that it is clear that the State intended to prosecute appellant for sexual assault. An indictment is not necessarily defective even though all elements of the offense are not alleged. See Studer v. State, 799 S.W.2d 263, 268 (Tex.Cr.App.1990). The indictment must only charge an offense. See Studer v. State, supra at 272. The State was not required to specify the manner in which the victim did not consent. The indictments were sufficient in that both clearly charged sexual assault. Appellant=s second point of error is overruled. In his third point of error, appellant challenges the propriety of the State=s jury argument. The portion of the State=s jury argument which appellant asserts is improper is set out in relevant part: [PROSECUTOR]: You know, I don=t know if you recall when we selected the jury or went through the voir dire process yesterday, but when [defense counsel] got up after he filled in a little information about some things that weren=t on the jury information cards, the first thing he started talking to you about was punishment, the very first thing. And that=s an unspoken message -- [DEFENSE COUNSEL]: Your Honor, I object -- [PROSECUTOR]: B to you. [DEFENSE COUNSEL]: B to trying to figure out what in my mind is by the way that I conduct my voir dire. [PROSECUTOR]: That=s a conduct of counsel, Your Honor. THE COURT: Be careful. Go ahead. There are four permissible areas of jury argument. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Cr.App.1997). These areas are: A(1) summations of the evidence; (2) reasonable deductions from the evidence; (3) responses to the defendant=s argument; or (4) a plea for law enforcement.@ Lagrone v. State, supra at 619. During jury argument, a prosecuting attorney may draw from the facts in evidence as well as all inferences from the facts which are reasonable, fair, and legitimate. However, the prosecutor may not use jury argument to place before the jury, either directly or indirectly, evidence which is not in the record. AA prosecuting attorney, though free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly.@ Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983). The prosecutor is not entitled to make personal comments, but is required to keep the argument within the four permissible areas. Even if the State=s inference regarding the Aunspoken message@ of appellant=s counsel was inappropriate jury argument, it is not reversible error. Erroneous rulings by the trial court following improper jury argument are classified as Aother errors@ or non-constitutional errors under TEX.R.APP.P. 44.2(b). See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Cr.App.1998): A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App.1998). Here, the State=s comment did not rise to such a level that appellant=s substantial rights were affected; it did not influence the jury or have an inconsequential effect on the verdict. Appellant=s third point of error is overruled. The judgments of the trial court are affirmed. JIM R. WRIGHT JUSTICE November 15, 2001 Do not publish. See TEX.R.APP.P 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.