Rafael Limas Pena v. State ( 2012 )


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  • Affirmed and Memorandum Opinion filed January 31, 2012.
    In The
    Fourteenth Court of Appeals
    NO. 14-10-00740-CR
    RAFAEL LIMAS PENA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 232nd District Court
    Harris County, Texas
    Trial Court Cause No. 1236630
    MEMORANDUM OPINION
    Appellant Rafael Limas Pena challenges his conviction for felony aggravated
    sexual assault, asserting in two issues that the trial court erred by refusing his requested
    jury instructions regarding the statute of limitations and a lesser-included offense. We
    affirm.
    Background
    The complainant, D.S., testified that he attended a family barbeque at his uncle‘s
    home ―over the summer‖ when he was ―five or six years old‖ in ―1987 [or] 1988.‖
    Appellant, a close friend of D.S.‘s family, lived in the garage apartment attached to the
    home of D.S.‘s uncle. D.S., his siblings, and their cousins were playing in the garage
    apartment when appellant asked them to leave so that he could go to sleep. D.S. was the
    last child to leave. Appellant grabbed D.S. by the shoulder, held him back, and locked
    the door. Appellant fondled D.S.‘s body over his clothes, including his bottom, and told
    him not to tell anyone or appellant would cut out his tongue.
    Approximately two weeks after this incident, D.S. attended another family
    barbeque at his uncle‘s home. While the party proceeded outside, D.S. went inside the
    house to use the restroom. On his way out, appellant grabbed him, pulled him into the
    garage apartment, and again locked the door. This time, after fondling D.S., appellant
    turned D.S. around, forced him to bend over the bed, and removed his shorts and
    underwear. Appellant forcefully penetrated D.S.‘s anus with appellant‘s penis and then
    attempted to force D.S. to perform oral sex. After D.S. refused to open his mouth,
    appellant manually stimulated himself and ejaculated. Afterward, appellant repeated his
    threat to cut out D.S.‘s tongue if D.S. told anyone.
    D.S.‘s family hosted a barbeque at their house approximately two years later when
    D.S. was seven years old and in the first grade. D.S. went to bed around 9:00 p.m. and
    was later awakened by appellant. Appellant told D.S. that his mother was calling him.
    D.S. then walked toward the living room and called his mom, but everyone else was
    outside. Appellant grabbed D.S. and pulled him into the bathroom. Appellant told D.S.
    to lie face down on the floor. Appellant pulled down D.S.‘s shorts and underwear, again
    forcefully penetrated D.S.‘s anus with appellant‘s penis, and eventually ejaculated on
    D.S.‘s back. Before appellant left the bathroom, he said, ―[Y]ou already know what‘s
    going to happen to you.‖
    D.S. kept these incidents to himself until 2002 when he was 18. At that time, he
    told his parents, and they reported the incidents to the Baytown Police Department. The
    case was not investigated until 2009, after D.S.‘s cousin confronted appellant regarding
    D.S.‘s accusations, which resulted in an altercation. Appellant was indicted for and
    2
    charged with only one act of aggravated sexual assault of a child ―on or about November
    15, 1990,‖ although the State introduced evidence of indecency with a child and two
    aggravated sexual assaults, as set forth above. A jury found appellant guilty and assessed
    punishment at 23 years‘ imprisonment. The trial court sentenced appellant in accordance
    with the jury‘s assessment of punishment.
    Limitations
    In his first issue, appellant argues the trial court erred by refusing to instruct the
    jurors that they could not base a conviction on the first act of aggravated sexual assault if
    they believed the offense was barred by limitations.
    A person commits aggravated sexual assault if he intentionally or knowingly
    causes the penetration of the anus or sexual organ of a child or causes the anus of a child
    to contact the sexual organ of the actor. Tex. Penal Code § 22.021(a)(1)(B)(i), (iv). At
    issue are two versions of the statute of limitations for this offense.                          Effective
    September 1, 1987, the limitations period for sexual assault of a child was ten years from
    the commission of the offense. Act of May 31, 1987, 70th Leg., R.S., ch. 716 §§ 1, 3,
    1985 Tex. Sess. Law Serv. 716 (the ―Old Statute‖). Effective September 1, 1997, the
    limitations period was amended to be ten years from the victim‘s eighteenth birthday.1
    Act of May 24, 1997, 75th Leg., R.S., ch. 740 §§ 1, 4, 1997 Tex. Sess. Law Serv. 740
    (the ―New Statute‖). This amendment did not apply to the prosecution of any offense
    that was barred by limitations before September 1, 1997. 
    Id. § 3.
    A defendant may assert the statute-of-limitations defense by requesting a jury
    instruction on limitations if there is some evidence before the jury, from any source, that
    the prosecution is time-barred. Proctor v. State, 
    967 S.W.2d 840
    , 844 (Tex. Crim. App.
    1998); King v. State, 
    17 S.W.3d 7
    , 20 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d).
    The State must prove beyond a reasonable doubt that the prosecution is not barred by
    1
    The legislature may extend the statute of limitations for prosecution of a criminal offense after
    the offense has been committed but before the expiration of the original limitations period. Lindsey v.
    State, 
    760 S.W.2d 649
    , 653 (Tex. Crim. App. 1988).
    3
    limitations if the defendant presents some evidence and requests a jury instruction on the
    limitations defense. 
    King, 17 S.W.3d at 20
    . A requested instruction need not be in
    perfect form, but it must be sufficient to apprise the trial court of the omission in the
    charge. Chapman v. State, 
    921 S.W.2d 694
    , 695 (Tex. Crim. App. 1996); see also Tex.
    Code Crim. Proc. arts. 36.14, 36.15.              Properly preserved jury charge error requires
    reversal when the appellant suffers ―some harm‖ to his rights. Ngo v. State, 
    175 S.W.3d 738
    , 743 (Tex. Crim. App. 2005); Bargas v. State, 
    252 S.W.3d 876
    , 899 (Tex. App.—
    Houston [14th Dist.] 2008, no pet.). The jury charge in this case included the proper
    instruction for the limitations period under the New Statute, under which the limitations
    period was ten years following the complainant‘s eighteenth birthday.2
    Appellant asserts that the first incident of aggravated sexual assault may have
    occurred while the Old Statute was in effect. D.S. testified the first incident occurred
    when he was ―five or six years old‖ in ―1987 [or] 1988.‖ 3                       If it occurred before
    September 1, 1987, the Old Statute would apply, and limitations would have barred
    prosecution for that offense. Because of this, appellant argues he was entitled to an
    instruction that the jury could not base a conviction on the earlier offense if they found it
    was barred by limitations. However, appellant did not request this instruction during
    trial. Appellant objected to the instruction on limitations in the charge and requested an
    instruction ―that the statute at the time of this offense was ten years.‖ Appellant did not
    specify that the first sexual assault offense may have been barred by limitations under the
    Old Statute.4
    A trial judge errs in failing to submit a defensive instruction to the jury only ―if the
    record indicate[s] that the trial judge actually understood appellant‘s request to
    2
    D.S. testified at trial that he was 26 years old. Because he was not yet 28 years old, the
    prosecution was brought timely under the New Statute.
    3
    D.S. testified on July 27, 2010 that he was 26 years old; therefore, he was born in 1983 or 1984.
    He would have been five years old in 1988 or 1989. In 1987, he was three or four years old.
    4
    The State argues that appellant was indicted only for the last incident of aggravated sexual
    assault. But at trial, the State told the judge ―[a]ll the contact between the Defendant and the complainant
    are [sic] in the charged instrument.‖
    4
    encompass the matters about which appellant . . . complains [on appeal].‖ Bennett v.
    State, 
    235 S.W.3d 241
    , 243 n.9 (Tex. Crim. App. 2007); see also Jackson v. State, 
    288 S.W.3d 60
    , 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref‘d); 43B GEORGE E. DIX &
    JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE & PROCEDURE §
    54:7 (3d ed. 2011). ―We do not require a trial judge to mull over all the evidence
    introduced at trial in order to determine whether a defendant‘s request for a jury
    instruction means more than it says.‖ 
    Bennett, 235 S.W.3d at 243
    . Accordingly, in
    deciding whether the trial court understood the request for an instruction, we must
    examine the record for statements by the trial court that reflect what its understanding
    was, the general theme of defense evidence, the defensive theories presented at the trial,
    and anything else that may shed light on whether the trial court understood the objection.
    See Rogers v. State, 
    105 S.W.3d 630
    , 640 (Tex. Crim. App. 2003); see also 
    Jackson, 288 S.W.3d at 63
    . A trial court has no duty to instruct the jury on unrequested defensive
    issues, even when those issues are raised by the evidence. Posey v. State, 
    966 S.W.2d 57
    ,
    62 (Tex. Crim. App. 1998); see also 
    Jackson, 288 S.W.3d at 63
    . Thus, generally no error
    exists in the charge when a defensive issue was not requested or otherwise brought to the
    court‘s attention. 
    Posey, 966 S.W.2d at 61
    –62.
    Appellant never asserted during trial that a different statute of limitations might
    apply to the earlier offense; he only asserted generally that the prosecution was barred by
    limitations.5 Appellant also moved to quash the indictment before trial and at the close of
    evidence based on the same argument, but the trial judge never indicated she understood
    appellant‘s argument to be anything more than what appellant asserted before trial and
    during the charge conference. See 
    Rogers, 105 S.W.3d at 640
    (holding record did not
    show trial court understood appellant‘s request when appellant neither articulated exactly
    what he wanted nor explained or clarified request or objected after trial court denied
    request).
    5
    It is undisputed on appeal that the last offense would have occurred within the limitations period
    and that the New Statute would apply.
    5
    Appellant asked the trial judge to quash the indictment ―because, on the face of the
    indictment, it shows that the statute of limitations has passed . . . .‖ The indictment
    describes an offense ―on or about November 15, 1990.‖ That date is more than ten years
    before the indictment, but it is not before September 1, 1987. The trial judge reasonably
    may have concluded that appellant either was invoking the Old Statute or was unaware of
    the New Statute. Appellant similarly urged a directed verdict ―based on the face of the
    indictment being––showing that the statute of limitations has run.‖ We find appellant‘s
    defensive theory urged at trial to be different than the theory he now urges on appeal: that
    prosecution for the earlier offense might be barred by limitations under the Old Statute.
    See 
    Posey, 966 S.W.2d at 61
    –62 (holding trial court has no duty to instruct jury on
    unrequested defensive issues raised for first time on appeal); see also 
    Rogers, 105 S.W.3d at 639
    (―[E]ven if appellant subjectively intended to ask for an instruction on voluntary
    conduct, the mere request for an instruction on ‗accident,‘ without more, was not
    sufficient to alert the trial judge that he wanted an instruction on voluntary conduct.‖);
    
    Bennett, 235 S.W.3d at 243
    & n.9 (finding no error in charge because appellant‘s
    complaint was insufficient to convey issue presented on appeal). Thus, the trial court did
    not err in omitting the appellant‘s unrequested instruction sought for the first time on
    appeal.6
    We overrule appellant‘s first issue.
    Lesser-Included Offense
    In his second issue, appellant argues that the trial court erred in refusing to submit
    the jury instruction on the lesser-included offense of indecency with a child by contact
    that appellant requested at the close of evidence. We disagree.
    We use a two-step analysis to determine whether an appellant was entitled to a
    lesser-included-offense instruction. Hall v. State, 
    225 S.W.3d 524
    , 535 (Tex. Crim. App.
    6
    Because we find no error in the charge, we need not conduct a harmless error analysis under
    Almanza v. State, 
    686 S.W.2d 157
    (Tex. Crim. App. 1984). See 
    Posey, 966 S.W.2d at 60
    –61; 
    Rogers, 105 S.W.3d at 640
    –41.
    6
    2007). The first step is to determine, as a matter of law, whether the indictment for the
    greater-inclusive offense alleged all of the elements of the lesser-included offense or
    alleged elements plus facts from which all of the elements of the lesser-included offense
    may be deduced. 
    Id. at 535–36;
    see also Ex parte Watson, 
    306 S.W.3d 259
    , 273 (Tex.
    Crim. App. 2009) (op. on reh‘g). We next determine whether evidence supported giving
    the instruction to the jury. 
    Hall, 225 S.W.3d at 536
    . Specifically, a defendant is entitled
    to an instruction on a lesser-included offense when the proof for the offense charged
    includes the proof necessary to establish the lesser-included offense and there is some
    evidence in the record that would permit a jury rationally to find that if the defendant is
    guilty, he is guilty only of the lesser-included offense. 
    Id. (citations omitted).
    Indecency with a child is a lesser-included offense of aggravated sexual assault of
    a child when both offenses are predicated on the same act. Evans v. State, 
    299 S.W.3d 138
    , 143 (Tex. Crim. App. 2009). A person commits indecency with a child if, with
    intent to arouse or gratify the sexual desire of any person, he (1) engages in sexual
    contact with a child younger than 17 years old or causes the child to engage in sexual
    contact by touching, including touching through clothing, the anus, breast, or any part of
    the genitals of another person; (2) exposes his anus or genitals to the child; or (3) causes
    the child to expose his anus or genitals. Tex. Penal Code § 21.11(a).
    The State charged appellant with aggravated sexual assault and concedes that
    indecency with a child is a lesser-included offense. Appellant specifically argues the
    evidence supports an instruction on indecency because D.S. testified the first incident
    involved appellant fondling his bottom, which the jury could have construed as an act of
    indecency by contact between appellant‘s hand and D.S.‘s anus. Appellant asserts that
    the jury could have disbelieved the testimony of penetration and only believed the
    testimony establishing the first act of indecency. This initial act was separate and distinct
    from the later two acts involving penetration.        Thus, as a separate act, it was not
    predicated on and could not be a lesser-included offense of the two acts of aggravated
    7
    sexual assault attested to by D.S.7 See 
    Evans, 299 S.W.3d at 143
    ; see also Patterson v.
    State, 
    152 S.W.3d 88
    , 92 (Tex. Crim. App. 2004) (holding separate charges of sexual
    assault of a child were proper because evidence indicated that two separate offenses took
    place).
    To determine whether a lesser-included-offense instruction should have been
    included, we need to consider only whether there is some evidence that would permit a
    rational jury to find appellant guilty only of indecency with a child in relation to the
    charge of aggravated sexual assault. See 
    Hall, 225 S.W.3d at 536
    . In making this
    determination, we bear in mind, ―[T]here must be some evidence directly germane to the
    lesser-included offense for the finder of fact to consider before an instruction on a lesser-
    included offense is warranted.‖ Goad v. State, No. PD–0435–11, 
    2011 WL 5375119
    , at
    *2 (Tex. Crim. App. Nov. 9, 2011). The only evidence adduced at trial germane to
    sexual assault was D.S.‘s unequivocal testimony two incidents involved penetration.
    Appellant presented no evidence to the contrary, and there is no evidence in the record to
    suggest the acts involved only contact without penetration. Accordingly, the evidence
    does not support the conclusion that a rational jury could have determined appellant
    engaged in indecent contact but did not commit aggravated sexual assault. Thus, the
    evidence does not support the necessity of a lesser-included instruction regarding
    indecency with a child.
    7
    As set forth above, the State argued at trial, ―All the contact between the Defendant and the
    complainant are [sic] in the charged instrument,‖ thus asserting that the indictment included all three
    incidents attested to by D.S. Two or more offenses may be joined in a single indictment if they arise out
    of the same criminal episode, but each offense must be stated in a separate count. Tex. Code Crim. Proc.
    art. 21.24(a); see also Tex. Penal Code § 3.01 (defining ―criminal episode‖ as, inter alia, the commission
    of two or more offenses that ―are the repeated commission of the same or similar offenses‖); Fowler v.
    State, 
    240 S.W.3d 277
    , 280 (Tex. App.—Austin 2007, pet. ref‘d). Here, D.S. testified to three separate
    incidents between himself and appellant, the first involving appellant fondling D.S.‘s bottom through
    clothing with appellant‘s hand and the other two involving penetration. The indictment, however, alleges
    only one count that appellant ―caused the anus of [D.S.] to contact the sexual organ of [appellant].‖ Thus,
    the evidence presented at trial of the first act—that appellant fondled D.S.‘s bottom—does not match the
    allegation in the indictment. The indictment and evidence presented at trial did not allow for a conviction
    for the first act. See Martinez v. State, 
    225 S.W.3d 550
    , 555 (Tex. Crim. App. 2007) (holding trial court
    erred in entering judgment on counts not included in indictment or supported by evidence) (―Once the
    judge receives the jury‘s verdicts, he should perform the task of deciding what judgment is authorized by
    those verdicts in light of the controlling law, the indictment, and the evidence presented at trial.‖).
    8
    We overrule appellant‘s second issue.
    Conclusion
    We overrule appellant‘s issues on appeal. The judgment of the trial court is
    affirmed.
    /s/       Martha Hill Jamison
    Justice
    Panel consists of Justices Frost, Seymore, and Jamison.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
    9