McGahey v. State , 1988 Tex. App. LEXIS 365 ( 1988 )

OPINION

FARRIS, Justice.

Appellant, Andrew Swanner McGahey, was convicted of the offense of aggravated sexual assault. See TEX.PENAL CODE ANN. sec. 22.021 (Vernon Supp.1987). Punishment was assessed at thirty-five years in the Texas Department of Corrections.

Appellant’s sole contention on appeal is that the trial court should have charged the jury as to the lesser included offense of sexual assault. See TEX.PENAL CODE ANN. sec. 22.011 (Vernon Supp.1987). In determining whether appellant was entitled to a charge on a lesser included offense, we are required to consider all the evidence presented at trial. See Cordova v. State, 698 S.W.2d 107, 113 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986). Having reviewed the record of appellant’s trial, we hold that appellant was not entitled to a charge on the lesser included offense of sexual assault and affirm appellant’s conviction.

In Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985), the Texas Court of Criminal Appeals adopted the two-prong test set forth in Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981), for determining whether a jury must be charged on a lesser included offense. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Aguilar, 682 S.W.2d at 558; Moreno v. State, 702 S.W.2d 636, 640 (Tex.Crim.App.1986); Cordova, 698 S.W.2d at 113. A defendant’s own testimony alone is sufficient evidence to raise the issue. See Simpkins v. State, 590 S.W.2d 129, 132 (Tex.Crim.App.1979).

The first prong of the test has been met because sexual assault is a lesser included offense of aggravated sexual assault. See TEX.PENAL CODE ANN. sec. 22.021 (Vernon Supp.1987); see also Carter v. State, 713 S.W.2d 442, 448 (Tex.App.—Fort Worth 1986, pet. ref’d). However, appellant has failed to meet the second prong of the test because there was no evidence tending to show that if appellant was in fact guilty, he was guilty only of sexual assault.

The aggravating element alleged in the indictment was that the appellant used acts and words to place the victim, A_, in fear of serious bodily injury or death.

Appellant met A_at The Connection Club in Denton on the night of July 17, 1985. Appellant was wearing a jacket that said, “Texas Rangers, Narcotics Division” on the back. Appellant invited several persons, including A_, to a party on a houseboat moored at Lake Dallas. After The Connection Club closed, appellant offered A_a ride to the party on the back of his motorcycle. Once the pair got on 1-35, they proceeded to another bar in North Dallas where they had a drink. At approximately 2:00 a.m., the pair got back on 1-35 and proceeded to Lake Dallas.

Appellant and A_were the only witnesses to what transpired at Lake Dallas. It is at this point that the testimony of appellant and A_begins to diverge.

A_ testified that upon arrivmg at Lakeview Marina, they went to a dock where boats were moored and boarded a houseboat. Later evidence in the trial established that the boat belonged to Leon McNatt, appellant’s former employer. Appellant crawled through an open window and unlocked the door to the houseboat. After fixing a pair of drinks, appellant and A_ sat down on the platform of an adjacent ski boat. When A_got up to go back to the houseboat, she fell in the water, although the testimony is unclear as to whether she fell accidentally or was pushed by the appellant. Appellant then jumped in the water and began to fondle A__’s chest. A_ testified that she began to get scared at this point and asked appellant to take her home. A_ then testified that upon returning to the cabin of the houseboat, appellant grabbed her from behind, putting one hand over her forehead and holding an object across her throat. She further testified that appellant told her that she was not leaving and that she was going to make love to him or die. A_ also testified that she thought the object at her throat was a knife.

A_ testified that appellant ordered her to take off all of her clothes. He then forced her to lay down on a lounge or couch and forced her to have sexual intercourse with him, including anal and oral acts of intercourse. A_ testified that during the sexual intercourse, appellant struck her across the face and called her obscene names. The whole episode lasted several hours, during which time appellant stated that he was going to kill A_and commit suicide after he was done. A-testified that appellant ordered her to put on her clothes and told her he would kill her if she tried to attract attention or get help. She testified that at about 6:30 in the morning, she and appellant left the scene on the back of his motorcycle. A_per-suaded appellant to stop at a convenience store near her apartment where she informed the store clerk that appellant had raped her. She testified that when the store clerk threatened to call the police, appellant ran out of the store and left on his motorcycle.

Appellant’s testimony differs from A__’s in that he testified that she had begun “coming on” to him sexually before the pair ever left The Connection Club. Appellant’s testimony upon reaching the marina and entering the boat is essentially the same. Appellant testified that A_ fell off the platform behind the ski boat and that he pulled her back up out of the water by her collar. He stated that she then said she wanted to go swimming. Appellant testified that while they were swimming, he kissed her and they continued to kiss while in the water for 15 to 20 minutes.

Appellant testified that upon returning to the houseboat cabin, A_went into the bathroom. He testified that when she came out, her jeans were down to her knees and that she stepped towards him, laughing and giggling. Appellant testified that they then engaged in consensual sexual intercourse. Appellant testified that at about 6:30 a.m., they left the scene on his motorcycle. On the way back to her apartment, they stopped at the convenience store for coffee and appellant testified that the store clerk ordered him to leave or he was going to call the police. Appellant then got on his motorcycle and returned to his home.

During his testimony, appellant stated that he did not have a knife with him on that night and that he did not even own a knife. While he admitted to having sexual intercourse with A_, he stated that he did not use a knife or otherwise force her or threaten her in any way in order to have sexual intercourse with her. He stated that the whole episode had been consensual and that A_ had been the instigator.

The evidence regarding the actual assault itself was derived from two diametrically opposed sources: the testimony of A___ and that of appellant. Appellant testified that A_ consented to sexual intercourse. Consent is a defensive theory which vitiates sexual assault, aggravated or otherwise. Furthermore, appellant testified that he did not use force, threats or violence of any kind in order to have sexual intercourse with A_In sum, all of the evidence presented by appellant points directly to acquittal for any kind of sexual assault. The posture of the evidence, taken as a whole, was such that appellant was either guilty of aggravated sexual assault or he was guilty of nothing at all. In such a case, there is no obligation on the trial court to instruct the jury on a lesser included offense. See Bravo v. State, 627 S.W.2d 152, 157 (Tex.Crim.App.1982); Simpkins, 590 S.W.2d at 134; Thomas v. State, 578 S.W.2d 691, 698 (Tex.Crim.App.1979); Carter, 713 S.W.2d at 448.

We overrule appellant’s sole point of error and affirm his conviction.

JOE SPURLOCK, II, J„ dissents.