Marcus Glen Williams v. State ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARCUS GLEN WILLIAMS,                             )

                                                                              )     No.  08-04-00198-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     23rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Brazoria County, Texas

Appellee.                           )

                                                                              )                     (TC# 44364)

                                                                              )

O P I N I O N

Appellant Marcus Glen Williams was indicted for attempted sexual assault, enhanced by three prior felony convictions.  Over his not guilty plea, the jury found Appellant guilty of the offense as charged in the indictment.  Upon Appellant=s plea of true to the enhancement paragraphs, the trial court found them to be true and assessed punishment at 15 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  In seven issues, Appellant contends that:  (1) the trial court erred in granting the State=s challenge for cause to three venire persons during voir dire; (2) the evidence was legally and factually insufficient to sustain his conviction; (3) the trial court erred in refusing his request for a jury instruction on a lesser-included offense; (4) the trial court erred in admitting extraneous offense evidence; (5) at the punishment phase the State improperly admitted details of his prior convictions that were alleged for enhancement; and (6) the State made an improper jury argument during its closing argument.  We affirm.

On December 11, 2002, Deborah Morales was living at the Arbors Apartments in Lake Jackson, Texas with her three children.  That morning, Ms. Morales took her oldest daughter to school.  As they walked around a corner in the complex, Ms. Morales saw a black man wearing a knit cap and a checkered blue and white jacket.  When they got into her car, Ms. Morales observed that the man was looking around and pacing a little bit.  She had never seen him before, but Ms. Morales believed that she got a good look at him. 

When Ms. Morales returned from taking her daughter to school, about ten minutes later, the man was still standing near the parking area. The man was acting like he was looking for somebody or waiting, moving around, looking in her direction and then turning away.  Ms. Morales was scared to exit, so she stayed inside her car.  Ms. Morales pretended that she was reading a piece of paper in her car and was hoping that he would leave, but he did not.  Instead, the man walked to the edge of the sidewalk towards the passenger side of her car.  As he was walking, Ms. Morales locked her doors.  Ms. Morales watched the man in her rear view mirror as he just stood there looking around.  For a second, she lost sight of him and then he reappeared at the back of her car on the driver=s side.  The man had opened his pants and Ms. Morales saw that he was walking up to her door, holding his penis in his hands masturbating and rubbing his penis against her car to the driver=s door. When he got to her door, he tried to open it.  Because the door was locked, it made a clicking noise, which she heard more than once. Ms. Morales started her car and backed out of the parking space, striking the man in the groin area with her side mirror in the process.  The man stepped in front of her car in the space where she had been parked and smiled at her as he zipped or buttoned up his pants.

Ms. Morales drove to the police department and reported the incident.  Officer Gabriel Villanueva took her complaint.  Ms. Morales returned to the apartment complex with Officer Villanueva and another detective to identify a suspect who was being held, but she told them he was not the same man.  They returned to the police station and then Officer Villanueva escorted her home.

A few days later, Officer Villanueva came to Ms. Morales= apartment to show her a photo line up of six individuals.  Ms. Morales initially narrowed the line up down to two photographs.  She looked at the two photographs again and identified one individual, Appellant.  On a certainty scale of one to ten, Ms. Morales rated her certainty as an eight and a half that the individual pictured was the man from the December 11 incident. Ms. Morales signed and initialed Appellant=s photograph in the photo line up.  Officer Villanueva then showed her a larger picture of Appellant and Ms. Morales was very certain that he was the same man. Ms. Morales identified Appellant in the courtroom as the man who approached her car on December 11. 

On cross-examination, Ms. Morales recalled telling Officer Villanueva that the man was a dark-skinned black male, six feet, three inches tall.  She remembered that the man=s teeth were white and she did not see any gold teeth.  Defense counsel asked Ms. Morales to look at the Appellant=s teeth and to identify whether these were the same teeth.  Ms. Morales replied, AI don=t know, sir.@  She agreed that during the incident, the man who approached her did not say anything to her and did not touch her.  She conceded that her December 14 statement to the police did not say anything about the man masturbating.  On redirect, Ms. Morales explained that she had told the police that the man had his penis in his left hand and in her mind what she described to the police was the same as masturbation.  Ms. Morales maintained that on the day of the incident, Appellant had white teeth and again identified Appellant as her assailant. 

Officer Gabriel Villanueva testified that when he met Ms. Morales in the police station lobby on December 11, she was hysterical.  He gathered information from her and because another officer had found someone in the area who may have matched the description, he and a detective took Ms. Morales back to see if she could identify the suspect.  Ms. Morales instantly said that the detained suspect was not the right man.  They returned to the police station and Officer Villanueva gathered more information from Ms. Morales.  Upon her request, Officer Villanueva escorted Ms. Morales back to her residence.

Through further work, Officer Villanueva developed a possible suspect in Ms. Morales= case. Officer Villanueva requested and obtained a photograph of Appellant from the Texas Department of Public Safety. He also obtained the photo line up he later showed to Ms. Morales.  Officer Villanueva agreed that Ms. Morales narrowed it down to two photographs and then selected Appellant=s photograph from among the two.  She signed and initialed Appellant=s photograph.

On cross-examination, Officer Villanueva agreed that he was initially dispatched to the police station lobby to speak with Ms. Morales about an indecent exposure case, not an attempted sexual assault case.  Officer Villanueva admitted that he did not try and did not request that another officer try to lift fingerprints from the driver=s side door handle.  He also did not try to obtain any bodily fluid specimens from the car for DNA testing.  On redirect, Officer Villanueva explained that it was the receptionist at the station who had called it an indecent exposure case.  Typically, what kind of case is filed is determined by the D.A.=s office after he has completed his investigation.  Officer Villanueva also testified that in this case, he looked for fingerprints, but did not find anything to indicate that fingerprints could have been lifted from the car.  He testified to the same with regard to the presence of bodily fluids.

At trial, the State was allowed to introduce extraneous offense evidence on the issue of identity.  Charlotte Bridges testified that on December 12, 2002, she was living in the Ashton Oaks Apartments in Clute, which is located in Brazoria County, Texas.  That morning, she put her children on the school bus around 7:45 a.m. and returned to her apartment.  She laid down for about thirty minutes and then got up to clean her apartment.  She opened the blinds in the window by her front door.  While she was cleaning, Ms. Bridges noticed a man walking up and down the sidewalk.  As he was walking, he occasionally looked inside her window, making eye contact with Ms. Bridges.  After cleaning up her apartment, she sat down on the couch next to the window to watch television.

As Ms. Bridges was sitting on her couch, she felt as if someone was standing right behind her so she stood up, turned around, and looked out the window.  There was a black man standing outside her window.  His pants were unzipped, his penis was in his hand, and he was masturbating. Ms. Bridges recalled that the man=s other arm was up and leaning against the window.  She described the man as dark-skinned, five feet, nine inches in height, and wearing a dark-colored winter cap and a plaid jacket.  Ms. Bridges grabbed the telephone and called the police.  Two days later, the police brought her a photo line up.  Without hesitation, she picked out Appellant from the line up.  Ms. Bridges also identified Appellant in the courtroom as the man who was outside her window on December 12.  On cross-examination, Ms. Bridges agreed that Appellant was not trying to get into her apartment.

The State called Chief Deputy Charles Wagner to testify about Appellant=s gold teeth caps.  In response to a subpoena, Chief Deputy Wagner had turned over gold teeth caps to Appellant=s attorney.  At trial, Appellant removed the gold caps from his four front teeth and Chief Deputy Wagner identified them as the same ones that he had turned over to Appellant=s attorney earlier in the year.  Chief Deputy Wagner explained that the gold caps were in Appellant=s possession when he was booked into the jail.

In his defense, Appellant called Officer John McDonald who testified that he arrested Appellant on December 16.  According to the booking report, Appellant told him he was five feet, eight inches tall and weighed 142 pounds.  Vicky Lee, the personnel coordinator for Appellant=s employer, testified that she was told Appellant worked a night shift on December 10, 11, and 12.  She, however, had no document to show this.  Richard Williams, Appellant=s father, testified that Appellant was living with him in December 2002.  According to Mr. Williams, Appellant worked night and day shifts.  Mr. Williams stated that Appellant is five feet, eight inches tall and guessed that Appellant weighed about 190 to 200 pounds back in December 2002.          In his first issue, Appellant argues that the trial court erred in granting the State=s challenge for cause to three venire persons because the State asked improper commitment questions during voir dire. During voir dire, the State prosecutor asked the jury panel:

If you had one witness that you believed beyond a reasonable doubt to the actual offense, could you convict if you believed that person beyond a reasonable doubt?  But just because there was one witness would that keep you from convicting?

Jurors No. 22 (Tasset), No. 29 (Pena), and No. 35 (Mosley) responded affirmatively.  Appellant made no objection to the State=s line of questioning.  The State challenged the three prospective jurors based on their response to the one-witness question.  The State also challenged Juror No. 35 (Mosley) because he would require the defendant to testify before deciding the case.  The trial court stated that it would talk with each of the challenged jurors individually.  The trial court then conducted a hearing in which it extensively questioned each of the challenged venire persons.  Each of the challenged venire persons indicated that he could not convict if there was only one witness.  Based on their responses, the trial court granted the State=s challenges for cause.  Appellant objected to each ruling, arguing that the trial court=s questions were Acommit@ questions. 

Improper Commitment Question

The trial court has broad discretion over the process of selecting a jury.  Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002); Allridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1176, 103 L. Ed. 2d 238 (1989).  We leave to the trial court=s discretion the propriety of a particular question and the trial court=s discretion will not be disturbed absent an abuse of discretion.  Barajas, 93 S.W.3d at 38. 

A question is proper if it seeks to discover a juror=s views on an issue applicable to the case. Barajas, 93 S.W.3d at 38. A question can be relevant if it seeks to uncover grounds for a challenge for cause.  See id. at 39.  However, an otherwise proper question is impermissible, if it attempts to commit the juror to a particular verdict based on particular facts.  Barajas, 93 S.W.3d at 38-9; Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App. 2001). 

A commitment question is a question that commits a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.  Standefer, 59 S.W.3d at 179.  In Standefer, the Court of Criminal Appeals articulated the following two-step test for determining whether a commitment question is proper: (1) Is the question a commitment question; and (2) Does the question include only those facts that lead to a valid challenge for cause?  Standefer, 59 S.W.3d at 182.  If the answer to the first question is Ayes@ and the answer to the second question is Ano,@ then the question asked is an improper commitment question and the trial court should not allow the question.  Id. at 182-83; Lydia v. State, 109 S.W.3d 495, 497-98 (Tex.Crim.App. 2003). Commitment questions are improper (a) when the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact or by having a particular attitude or opinion or (b) even if the question meets the challenge for cause requirement, if it also includes facts in addition to those necessary to establish a challenge for cause.  Sanchez v. State, 165 S.W.3d 707, 712 (Tex.Crim.App. 2005).  An improper commitment question attempts to create a bias or prejudice in the venire member before he has heard the evidence, whereas a proper voir dire question attempts to discover a venire member=s preexisting bias or prejudice.  Id. at 712.

With respect to the questions posed by the State prosecutor during voir dire, we observe that Appellant made no objection to the prosecutor=s line of questioning, including no objections to its alleged improper commitment questions to the jury panel.  To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on such objection.  See Tex.R.App.P. 33.1(a).  Appellant has failed to preserve error as to whether the State prosecutor asked improper commitment questions to the jury panel, therefore, we overrule this portion of Appellant=s first issue.

State=s Challenges for Cause to Three Venire Persons

Within his first issue, Appellant also contends that the trial court erred in granting the State=s challenges for cause to Jurors No. 22 (Tasset), No. 29 (Pena), and No. 35 (Mosley).

Standard of Review

To show error in the trial court=s grant of the State=s challenge for cause, an appellant must show that either:  (1) the trial court applied the wrong legal standard in sustaining the challenge; or (2) the trial court abused its discretion in applying the correct legal standard.  See Jones v. State, 982 S.W.2d 386, 388‑89 (Tex.Crim.App. 1998).  The State is entitled to challenge a potential juror for cause if that juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.  See Tex.Code Crim.Proc.Ann. art. 35.16(b)(3)(Vernon Supp. 2004-05).

Challengeable for Cause

A venire person who categorically refuses to convict upon the testimony of a single witness is not challengeable for cause on this basis alone so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt.  Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App. 1995). A[A] venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law.@ Id. at 533.  However, a venire person who could not convict even if he believed the State=s only witness, and that testimony convinced him beyond a reasonable doubt of the defendant=s guilt, can be challenged for cause.  Id.  In other words, a venire person who would require more evidence than the testimony of a single witness, even if that testimony were enough to convince him of guilt beyond a reasonable doubt, is challengeable for cause.  Id. at 534.

If the trial court erred by granting the State=s challenges for cause to the three venire persons, we must disregard the error unless it affected Appellant=s substantial rights.  See Jones, 982 S.W.2d at 391‑92.  A defendant does not have a right to have a particular individual serve on the jury.  Id. at 393.  The defendant=s only substantial right is that the jurors who do serve be qualified.  Id. If the trial court erroneously granted the State=s challenge for cause to the venire persons, this error will require reversal only if the error actually deprived the defendant of a lawfully constituted jury.  See id. at 394; Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App. 1999).

First, we find that the State=s initial question to the jury panel was a proper commitment question, in that it sought to elicit whether any of the venire members could not convict based on the testimony of only one witness, even though that witness=s testimony convinced him beyond a reasonable doubt of the defendant=s guilt.  The initial affirmative responses of Jurors No. 22 (Tasset), No. 29 (Pena), and No. 35 (Mosley) indicated that they would hold the State to a higher burden than the law allows and thus, they were challengeable for cause.  See Castillo, 913 S.W.2d at 533.

In response to the State=s challenges, the trial court, however, conducted its own questioning of the challenged venire members.  After first discussing the State=s burden and the meaning of beyond a reasonable doubt generally, the following exchange occurred between the trial court and Juror No. 22 (Tasset):

The Court:        The question is whether or not if you believe that one witness beyond a reasonable doubt would you still not be able to vote to convict?  That=s really what the question is. 

In other words, do you have in your mind the opinion that if there is only one witness and no other evidence of any kind, do you have the idea that you could not convict, even if you believed that one witness proved their case beyond a reasonable doubt?  It=s a follow-the-law question.

Juror Tasset:     The way I look at it is the definition of the five things I guess you put on this--or seven [elements of the offense].  I don=t think you can ever get there, beyond a reasonable doubt, with one witness. Okay?

The Court:        Okay.  So you don=t think if it was just one witness that you could convict, correct?

Juror Tasset:     That=s correct.

Over Appellant=s objection, the trial court sustained the State=s challenge for cause to Juror No. 22.  The trial court next questioned Juror No. 29 (Pena).  The following exchange occurred:

The Court:        No. 29, sir.  You=re Mr. Pena?  If the law--the law requires any particular number of witnesses or any particular type of proof would you require more than one witness= oral testimony before you could decide a case?

Juror Pena:       Yes.

The Court:        Even though the law doesn=t require that?

Juror Pena:       Yes.

The Court:        Any other questions?

Defense:           Mr. Pena, have you got a preconceived idea then that you could never convict anybody for any crime unless the State produced more than one witness?

Juror Pena:       That=s just the way I feel.

Over Appellant=s objection, the trial court sustained the State=s challenge to Juror No. 29.  The trial court next questioned Juror No. 35 (Mosley). In relevant part, the following exchange occurred:

The Court:        Okay. Mr. Mosley.  Mr. Mosley, if the law doesn=t require any particular quantum of witnesses, okay--they would require there to be evidence to convict somebody, but they don=t tell you what necessarily the evidence has to be, would you impose a requirement in your mind that the law doesn=t require that there would have to be more than one witness before you could decide a case?

Juror Mosley:   In my opinion, yes, because--well, I didn=t want to say this; but nothing against women or girls; but they will lie to you, and if put in a tight situation they will lie to you.  And so that=s the reason why I feel like because of what I just heard it just sounds like >he said, she said= and anyone--it would have to be to where I hear both sides and evidence, of course, and base my opinion upon that.  That=s just my opinion.

The Court:        Well, we are not asking you about what the--that=s a little bit different because you are talking about a factual scenario about the credibility of women.  I=m asking you about are you--would you impose a requirement in your mind before you could convict someone that there has to be more than one witness if the law doesn=t require that?

Juror Mosley:   The purpose why I answered yes because--okay.  In my mind, I can=t totally believe one particular person if I don=t hear from the other person.  Because then I=m only going on one side of the story, in my opinion.

The Court:        So you would require both sides to testify?

Juror Mosley:   In my opinion, yes.

The Court:        So like you=ve heard of disorderly conduct charges before, like somebody cusses somebody out and it offends them?

Juror Mosley:   Yes.

The Court:        If it=s one witness saying this guy called my mother some bad name or something like that, you couldn=t convict the person who is alleged to have been saying these bad words unless there was another witness; is that correct?

Juror Mosley:   Correct, because that person could be--

The Court:        Even if the law didn=t require more than one witness?

Juror Mosley:   Yeah, that=s the way I feel.

The Court:        Any other questions, Counsel?

Defense:           Mr. Mosley, you could--could you find a defendant in a criminal case not guilty, even if they did not testify and give their side of it?

Juror Mosley:   See, that=s kind of a touch and go because that depends on what the evidence is.  If the evidence is whatever it may be.  Let=s just say they say this person didn=t do it.  Then okay.  But if the evidence is a close call then I personally would have to hear from that person to find out to make my judgment, I guess. 

Defense:           But you would require the State to prove its case beyond a reasonable doubt whether the accused testified or not?

Juror Mosley:   Yes, yes.

                                                              .               .               .

The State:         Mr. Mosley, as I understand it, if you felt like--if there was a situation where there was one witness, you would want to hear from the defendant and you would require the defendant to testify; is that correct, before you could make a decision?

Juror Mosley:   Again, I said yes.  And reason why is the same.  I don=t even--you=ve heard it.

In reviewing the exchanges between the trial court and the challenged venire persons, it is apparent that the trial court=s questions on the single witness testimony were slightly flawed.  As noted above, a venire person who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venire person who can follow the law.  See Castillo, 913 S.W.2d at 533.  In the first exchange, the trial court properly inquired as to whether Juror Tasset would not convict based on single witness testimony even though he believed that one witness proved the State=s case beyond a reasonable doubt.  Instead of answering the question posed, Juror Tasset stated that he did not believe the State could prove the offense beyond a reasonable doubt based on one witness. Further, Juror Tasset agreed that he could not convict if there was just one witness.  Juror Tasset=s refusal to render a guilty verdict based on single witness testimony may have only indicated that his Athreshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient@ in which case, he was not challengeable for cause.  Castillo, 913 S.W.2d at 533.  Similarly, the trial court=s questions to Juror Pena only show that Juror Pena would require more than one witness before he could decide a case--without ever determining whether he would categorically refuse to convict even if he believed the one witness and that testimony convinced him beyond a reasonable doubt of a defendant=s guilt.  See id. at 533. 

With regard to Juror Mosley, the State challenged him on two grounds:  his response to their single witness question and because he would require the defendant to testify before deciding the case.  During the questioning, Juror Mosley maintained that he would require the defendant to testify in a Ahe said, she said@ type of case.  Since the law requires that a defendant=s Fifth Amendment right not to testify against himself not be held against him, Juror Mosley was properly challenged for cause on that ground.  See e.g., Standefer, 59 S.W.3d at 181 n.16 (whether a juror could follow the law that precludes him from holding against the defendant his failure to testify is a proper commitment question that tests the prospective jurors ability to follow a legal requirement). 

However, even if we agree with Appellant that the State=s challenges for cause were erroneously granted, he has failed to show he was harmed by such error.  Appellant states that he was harmed because the jury deliberated for only two hours and forty-eight minutes, showing that the trial was mere formality and a foregone conclusion.  We cannot agree that the amount of time the jury spent in deliberations alone shows that Appellant was deprived of a lawfully constituted jury. There is nothing that indicates that the jurors who served were not qualified.  We conclude that any error in granting the State=s challenges for cause to the three venire persons, did not affect Appellant=s substantial rights and thus, does not constitute reversible error.  We overrule Appellant=s first issue in its entirety.

In Issues Two and Three, Appellant contends that the evidence is legally and factually insufficient to sustain his conviction for attempted sexual assault.  Specifically, Appellant argues that there was no evidence to show intent to commit sexual assault and a complete lack of crucial evidence such as verbal threats and physical contact between Appellant and the complainant.  Rather, Appellant asserts, the evidence only shows Appellant committed indecent exposure.

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust.  Zuniga, 144 S.W.3d at 481.  A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Attempted Sexual Assault

A person commits the offense of attempted sexual assault if, with specific intent to commit sexual assault, he does an act amounting to more than mere preparation that tends but fails to effect the commission of sexual assault.  Tex.Pen.Code Ann. '' 15.01(a), 22.01(a)(1) (Vernon 2003 & Supp. 2004-05).  A person commits sexual assault if he intentionally or knowingly:  (1) causes the penetration of the anus or sexual organ of another person by any means, without that person=s consent; or (2) causes the penetration of the mouth of another person by the sexual organ of the action, without that person=s consent; or (3) causes the sexual organ of another person, without that person=s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.  Tex.Pen.Code Ann. ' 22.011(a)(1).  A sexual assault is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence; or the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat.  See Tex.Pen.Code Ann. ' 22.011(b)(1)-(2).

The criminal attempt statute does not require that every act short of actual commission be accomplished in order for one to be convicted of an attempted offense.  Lindsey v. State, 764 S.W.2d 376, 378 (Tex.App.‑-Texarkana 1989, no pet.), citing Hackbarth v. State, 617 S.W.2d 944, 946 (Tex.Crim.App. 1981). Further, intent may be inferred from the accused=s actions, words, and conduct.  Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995); Lindsey, 764 S.W.2d at 378.

Viewing the evidence in the light most favorable to the verdict, the evidence shows that Ms. Morales observed a man she later identified as Appellant outside her apartment complex as she took her daughter to school.  When she returned ten minutes later, Appellant was still standing near the parking area of the complex.  He was moving around and looking in her direction.  Ms. Morales was afraid to exit her car, so she pretended she was reading. Appellant walked around her car, from the passenger side, to the rear, and then towards the driver=s side.  Ms. Morales locked her doors as he was walking.  As Appellant was walking towards the driver=s side door, Ms. Morales saw Appellant holding his penis in his hands and masturbating.  Appellant rubbed his penis against the car door and tried to open the door more than once.  Ms. Morales escaped by starting her car, backing out, and driving away from the scene.

From these facts, a rational jury could infer that Appellant by exposing his penis, suggestively rubbing it against her car, and then attempting to enter her car, intended to sexually assault Ms. Morales and that he did an act amounting to more than mere preparation that tended but failed to effect the commission of sexual assault.  Appellant argues that crucial evidence is missing in this case, namely, that Appellant did not speak, threaten, or touch the complainant.  Ms. Morales thwarted Appellant=s attempt to enter her car by locking the doors, therefore no physical contact occurred.  However, Ms. Morales= testimony indicates that she was afraid to exit her car while Appellant was standing in such close proximity and in the same location where he had been when she left ten minutes ago.  The jury could have reasonably inferred that Appellant=s stalking behavior and furtive movements around her car were physically threatening to Ms. Morales.  We conclude the evidence is legally sufficient to support Appellant=s conviction for attempted sexual assault.

With regard to his factual insufficiency complaint, Appellant again directs our attention to evidence that shows Appellant did not speak to or touch the complainant.  Appellant also asks that we consider his prior instances of indecent exposure, however, those instances were discussed in a hearing outside the jury=s presence.  Viewing the evidence in a neutral light, we conclude that the evidence supporting the verdict is not so weak as to be clearly wrong and manifestly unjust.  See Zuniga, 144 S.W.3d at 481.  Moreover, the contrary evidence is not so strong that the beyond a reasonable doubt standard of proof could not have been met.  See id.  Accordingly, we conclude the evidence is both legally and factually sufficient to sustain Appellant=s conviction.  Issues Two and Three are overruled.

In Issue Four, Appellant contends the trial court erred in refusing to submit his requested instruction on the lesser-included offense of indecent exposure.

We apply a two-prong test to determine whether Appellant was entitled to a charge on a lesser-included offense.  See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993).  First, the lesser-included offense must be included within the proof necessary to establish the offense charged.  See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau, 855 S.W.2d at 672-73; see also Tex.Code Crim.Proc.Ann. art. 37.09(1)(Vernon 1981).  Second, the record must show some evidence that would permit a rational jury to find that if the defendant is guilty of an offense, he was guilty only of the lesser offense.  Feldman v. State, 71 S.W.3d 738, 750-51 (Tex.Crim.App. 2002); Rousseau, 855 S.W.2d at 672-73.

Whether one offense is a lesser-included offense of another is determined on a case-by-case basis.  Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995).  Under Article 37.09 of the Code of Criminal Procedure, an offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.  See Tex.Code Crim.Proc.Ann. art. 37.09(1).  We employ a three-step analysis in making this determination.  See Jacob, 892 S.W.2d at 907-08; Noyola v. State, 25 S.W.3d 18, 20-1 (Tex.App.--El Paso 1999, no pet.).  First, we examine the elements of the charged offense as they appear in the indictment, with special attention to the facts required to prove the charged offense.  Jacob, 892 S.W.2d at 907; Noyola, 25 S.W.3d at 21.  AFacts required@ means the evidence legally required to prove the elements of the charged offense.  Jacob, 892 S.W.2d at 908.  Second, we examine the statutory elements of the offense sought as a lesser-included offense.  Jacob, 892 S.W.2d at 907; Noyola, 25 S.W.3d at 21.  Lastly, we must examine the proof presented at trial to show the elements of the charged offense.  Jacob, 892 S.W.2d at 907-08; Noyola, 25 S.W.3d at 21.  AIf the facts required to prove the elements of the lesser-included offense are not functionally the same or less than the charged offense, it is not a lesser-included offense even if the facts presented at trial could prove the lesser-included offense.@  Noyola, 25 S.W.3d at 21 (analyzing the Court=s interpretation of Article 37.09(1) in Jacob v. State).

In this case, Appellant was charged with the offense of attempted sexual assault.  See Tex.Pen.Code Ann. '' 15.01(a), 22.01(a)(1).  The indictment charged that Appellant Adid then and there, with the specific intent to commit the offense of Sexual Assault of D. Morales, do an act, to-wit: approach a motor vehicle occupied by D. Morales, exposure his genitals, and attempt to open the vehicle=s door, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended . . . .@  A person commits indecent exposure if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.  See Tex.Pen.Code Ann. ' 21.08(a)(Vernon 2003).  A lesser-included offense must be established by less or the same proof, not proof of an additional matter not required by the indictment for the charged offense.  See Tex.Code Crim.Proc.Ann. art. 37.09(1). Appellant=s requested lesser offense would require the State to prove he exposed his genitals with the intent to arouse or gratify the sexual desire of any person and was reckless as to another=s presence, therefore, the elements of the lesser offense were not functionally the same or less than those required to prove the charged offense.  See Jacob, 892 S.W.2d at 908.  However, in examining the proof presented at trial to show the elements of the charged offense, the record shows that the requested lesser offense was also proven by the same facts, namely, Appellant approached Ms. Morales in public while masturbating and rubbing his penis against her car.  Under the particular set of facts in this case, we find that the first prong is met.

In applying the second prong, some evidence must exist in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense.  Rousseau, 855 S.W.2d 672-73.  A defendant is guilty only of a lesser-included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates a crucial element.  See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996)(per curiam); Ramirez v. State, 976 S.W.2d 219, 227 (Tex.App.--El Paso 1998, pet. ref=d). To satisfy the second Rousseau prong, it is not enough that the jury disbelieves evidence pertaining to the greater offense; rather, there must be some evidence directly germane to the lesser-included offense to warrant its submission.  See Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). If the defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required.  Bignall, 887 S.W.2d at 24, citing Aguilar v. State, 682 S.W.2d 556, 588 (Tex.Crim.App. 1985).

In this case, however, there is no evidence that would permit a rational jury to find that if Appellant were guilty of an offense, he was guilty only of the lesser-included offense.  There was no evidence that Appellant only intended to expose himself. Rather, the evidence showed that Appellant was masturbating while attempting to gain entry into Ms. Morales= car.  Therefore, there was no evidence from which a rational jury could acquit Appellant on the greater offense while convicting him of the lesser-included offense. See Rousseau, 855 S.W.2d at 672.  Because the second prong cannot be satisfied, the trial court did not err in refusing to instruct the jury on the requested lesser-included offense.  Issue Four is overruled.

In Issue Five, Appellant asserts that the trial court erred in admitting extraneous offense evidence.  In response, the State contends that the evidence was properly admitted for the purpose of proving identity and to rebut Appellant=s impeachment of the complainant on the issue of identity.

Standard of Review

The trial court has wide discretion in deciding whether to admit or exclude extraneous offense evidence under Rule 404(b).  Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990)(Op. on reh=g). As long as the trial court=s ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling absent a clear abuse of discretion.  See id.

Relevant Purpose under Rule 404(b)

Rule 404(b) prohibits the admission of an extraneous offense at the guilt-innocence phase of trial to show character conformity, however, the rule does permit the admission of an extraneous offense if it has relevance for a non character conformity purpose, such as proving identity.^[1]  See Montgomery, 810 S.W.2d at 387; Tex.R.Evid. 404(b).  For proof of identity to be a valid purpose, it must be an issue in the case.  Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004).  Identity can be raised by defense cross-examination, such as when the identifying witness is impeached on a material detail of the identification.  Id.; see also Lane v.  State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996)(attacking accuracy of appellant=s confessions raised identity issue); Siqueiros v. State, 685 S.W.2d 68, 71 (Tex.Crim.App. 1985)(existence of mustache was material detail of identification to raise identity issue).  A Amaterial detail@ is a detail that is relevant to the reliability of the identification.  Page, 137 S.W.3d at 79.  Further, to be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offense as the defendant=s handiwork.  Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App. 2002); Lane, 933 S.W.2d at 519.  In determining the similarity of the offenses, courts should take into account both the specific characteristics of the various offenses and the time interval between them.  Johnson, 68 S.W.3d at 651.  Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offense.  Lane, 933 S.W.2d at 519.

During cross-examination, defense counsel questioned Ms. Morales about her description of the alleged assailant.  Ms. Morales described the man as a dark-skinned black male who was six feet, three inches tall and wore a black cap and blue checkered jacket.  She agreed that she had told Officer Villanueva that the man was so tall that his waist and genitals were above the height of the lower part of the driver=s window.  The defense counsel then questioned Ms. Morales about her recollection of the man=s teeth:

Defense:           I believe on direct examination you told [state prosecutor] that the person had very white teeth; is that correct?

Ms. Morales:    I saw white teeth.  Yes, sir.

                                                              .               .               .

Defense:           Would you mind looking at the mouth of the accused?  Are these the teeth you saw that were very white or white?

Ms. Morales:    I don=t know, sir.

During redirect, the State prosecutor questioned Ms. Morales about her response.

The State:         Now the defendant--defense attorney asked you about the defendant=s teeth.  What do you recall that day?  What do you recall seeing of the man who approached your car, without regard as to what you wrote or what you told anybody when?  Just right now tell the jury what you remember that man looking like.

Ms. Morales:    He had white teeth, broad shoulders and a cap on, blue cap, and a flannel jacket and some facial hair.

The State:         And I notice that during your testimony you looked the direction of the Judge=s bench.  Is there a reason that you keep looking over there?

Ms. Morales:    I don=t want to see him.

The State:         [Defense counsel] asked you to look at the defendant=s mouth earlier; is that correct?

Ms. Morales:    Yes, ma=am.

The State:         And when you did that he asked you if those were the teeth you saw on the date of the offense; is that right?

Ms. Morales:    Yes, ma=am.

The State:         And I think your response was you don=t know if those were the teeth; is that right?

Ms. Morales:    Yes, ma=am.

The State:         Do you know whether or not the man seated at the table next to me was the person who approached your car with his penis in his hand on December 11th, 2002?

Ms. Morales:    That=s him.

In re-cross examination, defense counsel asked Ms. Morales, AAnd you were only 8 and a half out of 10 sure that the person you finally picked [from the photo line up] was the person, correct?@  Ms. Morales replied, AYes, sir.@

Outside the jury=s presence, the State prosecutor argued that the defense counsel=s cross-examination of Ms. Morales has raised the issue of identity.  The State prosecutor noted, A[w]hen the defense asked the victim to look at the defendant=s mouth and he, for the record, smiled and revealed some gold in his teeth, I think that was done specifically for the purpose of trying to impeach her identification of him at the scene when she said she saw white teeth.@  The State also argued that defense counsel=s cross-examination of Ms. Morales concerning her assailant=s height also raised the issue of identity, therefore extraneous offense evidence would be admissible under Rule 404(b) for the purpose of proving identity.  The trial court agreed that the issue of identity has been raised and proceeded to conduct a hearing on the admissibility of various extraneous offenses that the State sought to introduce at trial.  The trial court sustained Appellant=s objection to all but one of the extraneous offenses, that is, the extraneous offense involving Charlotte Bridges.

First, in reviewing the relevancy of the Bridges extraneous offense, the record shows that during cross-examination defense counsel attempted to impeach Ms. Morales= testimony on a material detail of her identification of her assailant=s facial appearance.  The question on review was particularly damaging or effective in light of all the evidence presented.  Page, 137 S.W.3d at 79.  We conclude that the issue of identity was raised by defense counsel=s cross-examination of Ms. Morales.

Second, there are numerous similarities between the Bridges extraneous offense and the charged offense.  Ms. Bridges testified that a man was pacing the sidewalk outside her apartment on the morning of December 12, 2002 after she had put her children on the school bus.  Later, Ms. Bridges was sitting on her couch near a window and turned to see the same man standing outside her window.  He had an arm up against her window and was stroking his penis with his other hand. Ms. Bridges stated that the man=s pants were not down, just unzipped.  She described him as a black male, wearing a blue or black winter cap and a colored jacket.  Two days after the incident, Ms. Bridges positively identified Appellant as the man outside her window from a photo line up shown to her by the police and also identified Appellant in the courtroom during the hearing.  Both offenses involved a lone female who had returned to her apartment complex after getting her children off to school in the morning.  In both offenses, the man paced outside on the sidewalk before making contact.  Both women described the man as a black male wearing a knit or wool cap and a multi-colored or checkered jacket.  In each instance, the man exposed his penis and masturbated with his pants unzipped, but not pulled down.  In addition, in each instance the man did not immediately leave, but rather watched as each woman attempted to flee or seek help.  While Ms. Bridges testified that Appellant did not try to enter her apartment, given the proximity in time and similarities in the common mode of committing the offenses, we conclude that the offenses were sufficiently similar to mark them as Appellant=s handiwork.  Therefore, the trial court did not abuse its discretion in determining the Bridges extraneous offense was relevant on the issue of identity.

Rule 403 Balancing

In addition to challenging its relevancy, Appellant also argued that the prejudicial effect of admitting the Bridges extraneous offense evidence vastly exceeded its probative value.

Rule 403 provides that A[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@  Tex.R.Evid. 403.  There is a presumption that relevant evidence is more probative than prejudicial.  See Montgomery, 810 S.W.2d at 389.  In reviewing the trial court=s Rule 403 balancing-test determination, a reviewing court is to reverse the trial court=s ruling Ararely and only after a clear abuse of discretion.@  Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999), quoting Montgomery, 810 S.W.2d at 389. 

Factors employed in balancing the prejudicial and probative value of an extraneous offense under Rule 403 are:  (1) how compellingly the extraneous offense evidence serves to make more or less probable a fact of consequence--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury Ain some irrational but nevertheless indelible way;@ (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Mozon, 991 S.W.2d at 847; Montgomery, 810 S.W.2d at 389-90.

Applying the Rule 403 balancing factors, we find that the Bridges extraneous offense evidence was strong and compelling evidence with regard to Appellant=s identity in the charged offense.  There were significant similarities between the Bridges offense and the instant offense and Ms. Bridges= unequivocal identification of Appellant in a case involving similar circumstances tended to make more probable Ms. Morales= identification of Appellant with respect to the charged offense.  However, the extraneous offense was not so similar to the charged offense or inherently inflammatory such that it would sway the jury is some irrational, but nevertheless indelible way.  In addition, Ms. Bridges= testimony was preceded by a limiting instruction from the trial court, specifically instructing the jury to consider her testimony for the issue of identity only. Thus, we conclude there was little chance that the jury would find Appellant guilty on an improper basis. Lastly, Ms. Morales, the single eyewitness in the State=s case-in-chief, was impeached on the basis of her description of Appellant=s physical appearance.  She had also exhibited some degree of uncertainty in her initial identification of Appellant from the police photo line up.  Since the State had no other evidence to establish identity, it had a compelling need to present the extraneous offense evidence. In light of the factors discussed above, we find that the trial court did not abuse its discretion in concluding that the probative value of the extraneous offense evidence was not substantially outweighed by any prejudicial effect.  Issue Five is overruled.

In his sixth issue, Appellant contends the trial court erred in allowing testimony during the punishment phase on the details of two prior convictions that were alleged for enhancement purposes.  Specifically, Appellant complains of the testimony of Gary Polh and Pamela Benton, however, he raised no objections during their testimony. Therefore, Appellant has failed to preserve his complaint for appellate review.  See Tex.R.App.P. 33.1(a); Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999).  Issue Six is overruled.

In his seventh issue, Appellant argues that the State prosecutor improperly argued for the jury to return a guilty verdict based on the demands and expectations of the community.  Specifically, Appellant complains of the following statement:

The State:         Ladies and gentlemen, if it=s an exaggeration to draw a charge to protect then law enforcement needs to change their way of thinking.  Because that=s not the way I believe the people of our county believe.

Defense counsel objected to the statement, arguing that it was outside the evidence and was an appeal to community expectations.  The trial court sustained the objection.  Appellant did not request a limiting instruction nor did he request a mistrial.

To preserve a complain on appeal about an erroneous jury argument, a defendant must show he objected and pursued his objection to an adverse ruling.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996).  Appellant did not obtain an adverse ruling, therefore he was granted all the relief he requested and has forfeited his right to complain of any error on appeal.  See id.  Accordingly, Issue Seven is overruled.

We affirm the trial court=s judgment.

August 23, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

Tex.R.Evid. 404(b).