Richard Norman v. the State of Texas ( 2023 )

Opinion issued June 22, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00342-CR
———————————
RICHARD NORMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1645524
MEMORANDUM OPINION
Appellant Richard Norman was charged with aggravated sexual assault of
the complainant, T.S.1 A jury found Norman guilty and sentenced him to 60 years
in prison.
1
See TEX. PENAL CODE § 22.021.
In his sole issue, Norman contends that the erroneous inclusion of an
uncharged element in the jury charge, which he did not object to in the trial court,
caused him egregious harm requiring a new trial. We disagree and affirm.
Background
On September 7, 2019, around 9:30 p.m., T.S. was at a bus stop waiting on
her bus to take her to her job at the McDonald’s in Texas Children’s Hospital. T.S.
was reading a book on her phone when she noticed a man, who was smoking a
cigarette, approach the bus stop. She did not pay much attention to the man, whom
she identified in a photo array and later in court as Norman, until he “slid next to
[her]” and said, “this is what we fixing to do.” At that point, T.S. “realized he had
something pressed to [her] side,” which she believed was a gun. She started to
panic, and Norman said, “[d]on’t make no noise . . . or I’ll shoot you.”
Thinking that Norman may rob her, T.S. offered him the only money in her
purse, a dollar, and told him to “take it all.” Norman refused and made her walk to
a field near the bus stop. Norman told T.S. to put her hands against the gate and
turn around. T.S. said she did what he asked because she could “do nothing back
to nobody with a gun,” and because she was scared: “I don’t know if he [was]
going to really shoot me or if he’s just saying that . . . [but] I’d rather . . . take my
chances, Lord, you know, God forbid, dealing with AIDS or something than be
dead.”
2
Norman unbuckled T.S.’s pants, pulled his pants down, and put his penis
into her vagina. After ejaculating inside of T.S., Norman pulled up his pants,
handed T.S. her phone and purse that were on the ground, and let her go.
When T.S. walked by a Metro PCS store, she was able to connect to Wi-Fi
and call her mother, Sureka Flakes. T.S. was “crying and screaming” and “very
frightened.” Her mother told her to call the police. When the police arrived, T.S.
explained what happened and the police sent her to the hospital for a sexual assault
examination. Lisa Dixon, a registered nurse and sexual assault nurse examiner,
preformed a sexual assault exam on T.S. During the exam, Dixon collected
vaginal swabs from T.S. and included them in a sexual assault kit. Dixon also
conducted an examination of T.S.’s genitalia to look for trauma or injuries.
Although Dixon found no evidence of injury to T.S., she explained that this was
typical because of the vagina’s elasticity. She further testified that the lack of
injury could be consistent with either consensual sex or sexual assault.
While T.S. was at the hospital, Flakes searched for the man that T.S. said
assaulted her. Flakes found a man sleeping at a bus stop that matched T.S.’s
description of the man who assaulted her. Flakes called the police, and the police
arrested the man, who was identified at trial by Houston Police Department
Sergeant R. Mason, one of the arresting officers, and by T.S. as Norman.
3
Sergeant Mason testified that he found an airsoft gun on the ground at the
bus stop next to Norman. The airsoft gun, although not a real gun, “looks like a
functioning firearm” based on its scale, color, trigger, working slide similar to a
semiautomatic handgun, and the absence of typical “orange marking indicating that
it’s an airsoft gun.”
After police compiled a photo array, T.S. identified Norman as the man who
sexually assaulted her. Police also collected a buccal swab from Norman for DNA
testing. After analyzing Norman’s buccal swab and the swabs contained in T.S.’s
sexual assault kit, Jessica Powers, a forensic DNA analyst at the Houston Forensic
Science Center, could not exclude Norman as a possible contributor to the major
components of the DNA on T.S.’s swabs.
The Indictment
In the initial indictment, the State charged him with aggravated sexual
assault by exhibiting a deadly weapon. The State later amended the indictment to
allege that Norman committed aggravated sexual assault by threat, and Norman did
not object to this amendment. The amended indictment read:
The duly organized Grand Jury of Harris County, Texas, presents in
the District Court of Harris County, Texas, that in Harris County,
Texas RICHARD C. NORMAN, hereafter styled the Defendant,
heretofore on or about September 7, 2019, did then and there
unlawfully, intentionally and knowingly cause the penetration of the
sexual organ of [T.S.], hereinafter called the Complainant, by placing
the Defendant’s sexual organ in the sexual organ of the Complainant,
without the consent of the Complainant, namely, the Defendant
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compelled the Complainant to submit and participate by the use of
physical force, violence, and coercion, and by acts and words
occurring in the presence of the Complainant, the Defendant
threatened to cause death or serious bodily injury to the Complainant.
The Jury Charge
After the State and the defense rested, the trial court read the charge to the
jury. Norman did not object. The abstract paragraph of the charge included an
aggravating element that was not included in the amended indictment.
Specifically, the abstract paragraph of the charge stated:
A person commits the offense of aggravated sexual assault if the
person intentionally or knowingly causes the penetration of the sexual
organ of another person by the sexual organ of the defendant, without
that person’s consent; and if the person by acts or words places the
victim in fear that serious bodily injury will be imminently inflicted on
any person.
(Emphasis added).
The application paragraph, however, tracked the amended indictment:
Now, if you find from the evidence beyond a reasonable doubt that on
or about the 7th day of September, 2019, in Harris County, Texas, the
defendant, Richard C. Norman, did then and there unlawfully,
intentionally or knowingly cause the penetration of the sexual organ
of T.S. by placing the Defendant’s sexual organ in the sexual organ of
T.S., without the consent of T.S., namely the defendant compelled
T.S. to submit or participate by the use of physical force, violence or
coercion, and by acts or words occurring in the presence of T.S., the
defendant threatened to cause death or serious bodily injury to T.S.,
then you will find the defendant guilty of aggravated sexual assault, as
charged in the indictment.
5
Charge Error
In his sole issue, Norman argues that the jury charge erroneously included an
uncharged aggravated element and that this error enlarged the jury’s ability to
convict Norman. resulting in egregious harm and requiring reversal. The State
concedes that the inclusion of the uncharged aggravating factor in the abstract
portion of the charge was error, but argues the error did not cause egregious harm
to Norman because it was cured by the application paragraph of the charge, it did
not lower the State’s burden of proof, it did not impact Norman’s defensive theory,
and it did not create a danger that the jury would return a non-unanimous verdict.
A. Standard of Review
Claims of jury charge error are reviewed under the two-pronged test in
Almanza v. State, 686 S.W.2d 157, 171–74 (Tex. Crim. App. 1985) (op. on reh’g).
First, a reviewing court must determine if there is jury charge error. Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Second, if the reviewing court finds
error, it then must analyze that error for harm. Id.If a defendant does not timely object to the error in the jury charge, the
record must show “egregious harm.” Almanza, 686 S.W.2d at 171. An erroneous
jury charge is egregiously harmful if it affects the very basis of the case, deprives
the accused of a valuable right, or vitally affects a defensive theory. Id. at 172. A
reviewing court must make this determination “in light of the entire jury charge,
6
the state of the evidence, including the contested issues and weight of [the]
probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole.” Id. at 171. Moreover, any
determination of egregious harm must be based on “actual rather than theoretical
harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
Egregious harm is therefore a difficult standard to meet, and the analysis is a
fact-specific one. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015);
Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). But neither party
bears the burden to show harm or lack thereof under this standard. Marshall v.
State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Rather, a reviewing court
must examine the entire record to determine whether appellant suffered actual
egregious harm as a result of the error. Id.B. Applicable Law
A person commits the offense of aggravated sexual assault if, among other
possibilities, the actor (1) intentionally or knowingly (2) causes the penetration of
the sexual organ of another person by the actor’s sexual organ, (3) without the
other person’s consent, and one of several aggravating factors is met. TEX. PENAL
CODE § 22.021(a)(1)(A)(iii), (2).
Lack of consent is shown with evidence the actor compelled the other person
to submit or participate by (1) the use of physical force, violence, or coercion or (2)
7
threatening to use force or violence against the other person or to cause harm to the
other person, and the other person believed that the actor has the present ability to
execute the threat. Id. § 22.011(b)(1)–(2).
Norman was charged under the first form of lack of consent—force and
violence. The list of possible aggravating factor includes if the actor places the
victim in fear that death or serious bodily injury will be imminently inflicted on
any person, or if the actor threatens to cause death or serious bodily injury to any
person. Id. § 22.021(a)(2)(A)(ii), (iii). “The jury charge may not enlarge the
offense alleged and authorize the jury to convict a defendant on a basis or theory
permitted by the jury charge but not alleged in the indictment.” Head v. State, 299
S.W.3d 414, 439 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
C. Error
As noted above, the abstract paragraph of the charge recited an aggravating
factor that was not included in the indictment, i.e., that by acts or words places the
victim in fear that serious bodily injury will be imminently inflicted on any person.
The application paragraph, however, tracked the language of the amended
indictment and included the correct aggravating factor, i.e., that by acts or words
occurring in the presence of T.S., the defendant threatened to cause death or
serious bodily injury to T.S.
8
The parties agree it was error to include the uncharged aggravating factor in
the abstract paragraph of the charge. Because the parties agree that this was error,
we next consider harm.
D. Harm Analysis
Norman concedes that he did not object to this error in the charge. When, as
occurred here, a defendant fails to object to charge error or states he has no
objection to a charge, a reviewing court cannot reverse unless the error was so
egregious and created such harm that the defendant cannot be said to have had a
fair trial. Almanza, 686 S.W.2d at 171. As noted above, we must determine the
existence of any such harm from a review of (1) the entire charge; (2) the state of
the evidence, including contested issues; (3) arguments of counsel; and (4) any
other relevant information. Id.
1. The entire jury charge
The first Almanza factor requires us to consider the entire jury charge. Id.
Here, the alleged error occurred within the abstract paragraph of the charge.
Abstract paragraphs “serve as a glossary to help the jury understand the meaning of
concepts and terms used in the application paragraphs of the charge.” Crenshaw v.
State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). In contrast, application
paragraphs apply “the pertinent penal law, abstract definitions, and general legal
9
principles to the particular facts and the indictment allegations.” Vasquez v. State,
389 S.W.3d 361, 366 (Tex. Crim. App. 2012).
The abstract paragraph of the charge in this case began with the instruction
that a “person commits the offense of aggravated sexual assault if the person
intentionally or knowingly causes the penetration of the sexual organ of another
person by the sexual organ of the defendant, without that person’s consent; and if
the person by acts or words places the victim in fear that serious bodily injury will
be imminently inflicted on any person.” See TEX. PENAL CODE
§ 22.021(a)(2)(A)(ii). This instruction misstates the aggravating factor on which
Norman was indicted—that by acts and words occurring in the presence of T.S.,
Norman threatened to cause death or serious bodily injury to T.S. See id.
§ 22.021(a)(2)(A)(iii).
However, this portion of the abstract was not incorporated into the charge’s
application paragraph. The application paragraph correctly tracked the amended
indictment, stating the required elements for the offense, including the aggravating
factor that Norman threatened to cause death or serious bodily injury to T.S.
Furthermore, at the end of the charge, the jury was instructed that it was their “sole
duty . . . to determine the guilt or innocence of the defendant under the indictment
in this cause[.]”
10
“It is the application paragraph of the charge, not the abstract portion, that
authorizes a conviction.” Crenshaw, 378 S.W.3d at 466 (“An abstract charge on a
theory of law that is not applied to the facts does not authorize the jury to convict
upon that theory.”). Because the application paragraph tracked the amended
indictment and directed the jury to determine the guilt or innocence “under the
indictment,” it “restricted the jury’s consideration to only those allegations
contained in the [indictment].” Id. at 467 (stating that jury is presumed to have
understood and followed court’s charge, absent evidence to the contrary).
Nothing in this record suggests that the jury did not properly apply the
application paragraph. Therefore, the charge itself does not point toward finding
egregious harm. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999)
(“Where the application paragraph correctly instructs the jury, an error in the
abstract instruction is not egregious.”).2
2
See also Crenshaw, 378 S.W.3d at 466 (“Generally, reversible error occurs in the
giving of an abstract instruction only when the instruction is an incorrect or
misleading statement of a law that the jury must understand in order to implement
the commands of the application paragraph.”); Farrar v. State, No. 01-18-01043-
CR, 2020 WL 2069152, at *6 (Tex. App.—Houston [1st Dist.] Apr. 30, 2020, no
pet.) (mem. op., not designated for publication) (“When a court’s charge correctly
states the elements of an offense and a reasonable jury could refer to that portion
of the court’s charge to mitigate any confusion by an incorrect statement of
elements elsewhere in the court’s charge, the fact that the charge contains a correct
statement of elements reduces the likelihood that harm reaches the level of
egregiousness.”).
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2. The state of the evidence
The second Almanza factor requires us to review the state of the evidence to
determine whether the evidence made it more or less likely that the jury charge
caused appellant actual harm. Almanza, 686 S.W.2d at 171; Arrington v. State, 451
S.W.3d 834, 841 (Tex. Crim. App. 2015). Norman contends that this factor favors
a finding of egregious harm because the testimony at trial emphasized T.S.’s fear
more than her feeling threatened. We disagree.
T.S. testified that, after Norman “slid up” next to her, he said: “Don’t make
no noise . . . or I’ll shoot you.” She testified that Norman told her to put her hands
against the gate and turn around, and that she did what he asked because she could
“do nothing back to nobody with a gun,” because she was scared: “I don’t know if
he [was] going to really shoot me or if he’s just saying that . . . [but] I’d rather . . .
take my chances, Lord, you know, God forbid, dealing with AIDS or something
than be dead.”
As a result, T.S. followed Norman order to put her hands against the gate.
He then unbuckled his pants and penetrated her vagina with his penis. Thus, T.S.’s
testimony is clear that she was afraid because Norman threatened to shoot her if
she did not comply. She did not testify that she was in fear because of anything
other than Norman’s threat to shoot her. Accordingly, the only theory that the
prosecution presented to the jury was that Norman forced T.S. to have non-
12
consensual sex with him by threatening her with what she believed to be a gun,
which caused her to be afraid. The threat and corresponding fear resulting from
that threat are inseparable.
Based on the physical and other evidence introduced at trial, including
Norman’s DNA, T.S.’s identification of Norman in the photo array as the man who
assaulted her, Flakes’s testimony that she saw Norman, who matched T.S.’s
description of the man who assaulted her, sleeping at a bus stop, and that police
arrested Norman and discovered an airsoft gun, that “looks like a functioning
firearm,” next to Norman on the ground, the identity of the person who had sex
with T.S. was not seriously contested by Norman.
Rather, Norman’s counsel presented his theory of the case, i.e., that the
sexual encounter between T.S. and Norman was consensual. Norman’s counsel
disputed T.S.’s credibility, pointing out inconsistencies in her statements, and
focused on the fact that the physical evidence supported his consent theory as
equally as it did T.S.’s version of a sexual assault. In closing argument, Norman’s
counsel explicitly argued that T.S. “voluntarily had sex with [Norman],” and that
the evidence “strong[ly] support[ed]” that this was a consensual act.
Thus, the jury heard two opposite theories. Under the prosecution’s theory,
Norman threatened to shoot T.S., and thus placed her in fear that she would be shot
if she did not comply, and then sexually assaulted her at gun point. Under the
13
defense’s theory, T.S. consented to the sexual encounter and later lied about being
threatened and sexually assaulted at gun point. These were the only two theories
presented to the jury.
The jury evaluated the evidence and chose one theory while rejecting the
other. This case does not reasonably involve the possibility that the jury believed
Norman placed T.S. in fear of serious bodily harm but did not threaten T.S. with
death or serious bodily harm in the process.3 The evidence simply did not provide
for that possibility. Arrington, 451 S.W.3d at 843–44 (holding that state of
evidence factor weighed against finding of egregious harm because jury clearly
credited complainant’s story and did not believe defendant’s “categorical denial of
all accusations,” since had jury believed defendant rather than complainant, it
would have acquitted him of all charges).4
We conclude this factor also weighs against finding egregious harm.
3
We disagree with Norman that the jury’s note sent out during deliberations—
“[w]e are having a difficult time coming to a consensus”—necessarily means that
the jury “found conflict as to the aggravating factor.” There is nothing in the
jury’s note to indicate that they could not reach a consensus on the aggravating
factor. Considering the state of the evidence, and the two competing theories
presented, it is more likely that the jury had a “difficult time coming to a
consensus” on whether the encounter was consensual.
4
Farrar, 2020 WL 2069152, at *7 (holding no egregious harm from erroneous use
of “or” instead of “and” in application paragraph of charge, in part, because jury
was presented with only two versions of events, either defendant forced
complainant to have sex with him at gunpoint or complainant consented to sex
under expectation that she would be paid, became angry when she was not paid as
expected, and wrongfully accused defendant of sexual assault).
14
3. Arguments of counsel
The third Almanza factor requires us to consider the arguments of counsel.
Almanza, 686 S.W.2d at 171. This factor weighs only slightly in favor of
egregious harm. The arguments of the parties created some potential that the jury
could have considered an uncharged aggravating factor. Norman’s counsel
addressed both aggravating factors, fear and threat, in his closing argument. He
asked the jury: “Did you hear about a gun still being pointed at her? No. Did you
hear about any threatening words from him after the sex act? No.”
The State concedes that the prosecutor mentioned the erroneous aggravating
factor during closing argument. In discussing how the case was pled, the
prosecutor incorrectly stated:
You’ve heard some testimony that this is not a real gun. We’re not
contending that it is. It doesn’t change the indictment at all, how the
case is pled. It’s pled “acts and words placing her in fear of serious
bodily injury or death,” and that's exactly what she was.
However, the thrust of the prosecutor’s closing argument focused on
rebutting the defense’s theory of consent by focusing on the evidence that Norman
forced T.S. to comply by threatening her with what she believed was a gun. In
doing so, the prosecutor argued,
He walks her with the gun trained on her back, that little bit of
distance back behind the bus. And he has her place her hands against
that wooden fence, and she realizes when he starts to unbutton her
pants exactly what’s about to happen.
15
At that point you heard her say, How are you going to fight a guy who
has a gun. How are you supposed to fight him? No. She goes into
survival mode. She does whatever it takes at that point to survive not
being shot by this man, who she doesn’t know, about to rape her.
The prosecutor then challenged Norman’s theory of consent, arguing that if
this was a consensual act, why did T.S. call her mother hysterical and say she was
raped, why did she call the police, why did she submit to an invasive sexual assault
examination, and “most importantly, . . . if this was a consensual act, why did
Richard Norman need this gun?” Thus, that this was a consensual act was the
defensive theory that the State primarily contested during closing arguments.
Although the parties’ closing arguments may have created a potential for
harm by addressing the uncharged aggravating factor, whether T.S. was placed in
fear versus threatened was incidental to the highly contested defensive theory of
consent, which was the primary focus of the parties’ closing arguments.
Accordingly, we impute less weight to this factor because the effect was incidental.
Cf. Hutch v. State, 922 S.W.2d 166, 172–73 (Tex. Crim. App. 1996), overruled on
other grounds by Gelinas v. State, 398 S.W.3d 703, 706–08 (Tex. Crim. App.
2013) (stating that when error relates to incidental defensive theory rather than
obviously contested issue, harm is less likely to be egregious).5
5
See also Hines v. State, 535 S.W.3d 102, 113–14 (Tex. App.—Eastland 2017, pet.
ref’d) (imputing less weight to arguments of counsel, even though parties’ closing
argument created potential for harm by referencing unauthorized theories of
liability, because those unauthorized theories were incidental to State’s case).
16
4. Any other relevant information
Finally, the fourth Almanza factor requires us to consider any other relevant
information. Almanza, 686 S.W.2d at 171. This factor weighs against finding
egregious harm. The jury heard the correct elements of the offense, as charged in
the amended indictment, from the trial court during voir dire. The trial court
explained the aggravating factor as “by acts and words that threaten to cause the
death and serious bodily injury to the Complainant. That’s what make[s] it
aggravated.” The trial court later reiterated that the charged offense was
“aggravated sexual assault, meaning forcing someone by threats to have sex,
basically, through threats of violence.”
The State also read the amended indictment during voir dire, and after the
jury was empaneled, during the arraignment. Each time the amended indictment
was read, the jury heard all elements of the offense, including the correct
aggravating factor that Norman threatened to cause death or serious bodily injury
to T.S.
5. Egregious harm not established on this record
A review for egregious harm is fact intensive and determined on a case-by-
case basis. Taylor, 332 S.W.3d at 489. In this case, the amended indictment was
read to the jury twice, once during voir dire and once during arraignment, and it
correctly listed all necessary elements for a conviction for aggravated sexual
17
assault, including the correct aggravating factor. Likewise, the application
paragraph of the trial court’s charge correctly listed all necessary elements for a
conviction of aggravated sexual assault, as were alleged in the amended
indictment. In the abstract paragraph, though, the charge included an uncharged
aggravating factor—placing the victim in fear of serious bodily harm.
But the jury was presented with an all-or-nothing defensive theory of the
case that excluded the possibility of any middle ground. There were only two
possible outcomes: either the jury was going to believe T.S.’s version of events
that Norman sexually assaulted her, after he threatened to shoot her with the gun
and that she complied because she was afraid, or the jury was going to believe
Norman’s version that the sex was consensual.
There is no reasonable possibility that the jury would have resolved all the
facts presented to conclude that Norman forced T.S. to engage in sex without her
consent, but that he did so only by placing T.S. in fear of serious bodily injury and
not by “acts or words . . . threaten[ing] to cause death or serious bodily injury to
T.S.” The testimony was clear that T.S. was afraid because Norman threatened to
shoot her if she did not comply. The jury ultimately believed T.S. because it
rejected Norman’s theory that the sexual encounter was consensual and found him
guilty.
18
Accordingly, based on our review of the entire record, we conclude that the
error of including an uncharged aggravating factor in the abstract portion of the
jury charge did not result in egregious harm to Norman. The error did not affect
the very basis of the case, deprive Norman of a valuable right, or vitally affect a
defensive theory. See Uddin v. State, 503 S.W.3d 710, 715 (Tex. App.—Houston
[14th Dist.] 2016, no pet.) (citing Sanchez v. State, 209 S.W.3d 117, 121 (Tex.
Crim. App. 2006) (“Charge error is egregiously harmful when it affects the very
basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory.”)).
Conclusion
We therefore affirm the trial court’s judgment of conviction in all things.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
19