Mykaya Lee Riley v. State

Opinion issued July 16, 2009

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00720-CR

NO. 01-07-00721-CR

NO. 01-07-00722-CR

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MYKAYA LEE RILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Cause No. 39915A, 39916A, 39917A

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MEMORANDUM OPINION

A jury convicted appellant, Mykaya Lee Riley, of three separate offenses of aggravated sexual assault in trial cause numbers 39915A, 39916A and 39917A. ⁽¹⁾ Specifically, in trial cause number 39915A, appellant was found guilty of the aggravated sexual assault of complainant K.B. In trial cause number 39916A, appellant was found guilty of the aggravated sexual assault of complainant B.G. In trial cause number 39917A, appellant was found guilty of the aggravated sexual assault of complainant J.B.

Appellant had two prior felony convictions--a conviction for attempted burglary of a building in 1990 and a conviction for aggravated robbery in 1992. The jury found the two punishment enhancement paragraphs in the indictment true and assessed a sentence of fifty years confinement for each aggravated sexual assault offense. In four points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to support his convictions, that the in-court identification of appellant as assailant was tainted due to an impermissibly suggestive photo lineup procedure, and that the trial court erred in failing to include an instruction on a lesser included offense in the jury charge.

We affirm the three trial court convictions. Background

On January 20, 2004 at approximately 8:00 a.m., the complainant B.G. was walking from a friend's house to a neighborhood store on or near Woodfair Drive in Houston, Texas. Appellant drove up to B.G. in a red Mitsubishi Eclipse and asked her if she needed a ride. B.G. had never met appellant before this encounter, but she agreed to take a ride from him. As soon as B.G. sat in the passenger seat of the Eclipse, appellant pointed a black revolver at her head. He told B.G. that "he killed a ho [sic] and my wife left me." Using the gun to ensure her compliance, appellant forced B.G. to place her head beneath the dashboard of the Eclipse. B.G. still managed to look out the window of the Eclipse to determine their location. She determined that appellant was taking her to the Brightwater Subdivision in Missouri City, Texas.

Appellant drove into the garage of his home at 4526 Lakeside Meadow in Missouri City, Texas ("home"). While pointing the gun at B.G., he forced her out of the Eclipse and placed duct tape on her mouth and eyes. He also used brown rope to bind her hands. B.G. could see appellant through a hole in the duct tape covering her eyes. Appellant led her into the den of his house and placed her near a white or tan leather sofa ("sofa"). He went into the kitchen and left B.G. alone in the den. When he returned, he removed the duct tape from B.G.'s mouth and forced her to perform oral sex on him. While still pointing the gun at her head, appellant untied her hands and told B.G. to take off her clothes. After B.G. complied, appellant made her bend face-forward over the sofa and began performing anal sex on her. When B.G. began to scream because of the discomfort, appellant brought out a black whip and hit B.G. with it. He told B.G. that if she did not stop screaming, he "would beat her with [the whip]."

After the anal sex act was completed, appellant returned to the kitchen for a few seconds. When he returned, he again forced B.G. to bend face-forward over the couch and performed vaginal sex on her from behind. After completing the vaginal sex act, appellant returned to the kitchen. B.G. removed the tape from her eyes and released herself from the rope. She ran naked out the door of appellant's house to find a neighbor willing to call the police on her behalf.

Stephen Montoya, appellant's neighbor residing at 4531 Lakeside Meadow in Missouri City, Texas, heard B.G. screaming and walked outside to find B.G. searching for help. He beckoned B.G. over to his house but then hid after appellant drove up in the Eclipse. Appellant waved a gun at B.G. and seized her. Montoya called the police. After appellant forced B.G. back into the car, he told her that he would "have to kill her."

Appellant returned to the house and forced B.G. inside. They heard police sirens, and appellant got nervous. Appellant gave B.G. water and fed her gumbo. He promised to let her go if she agreed not to tell anyone about her capture and sexual assault. She agreed not to tell anyone. Appellant told her to take a shower in his bathroom. He also gave B.G. clean undergarments and returned her clothes. B.G. put on her clothes and appellant dropped her off at her friend's house.

On January 21, 2004, B.G. approached Houston Police Department ("HPD") Officer S. Chaffin in the parking lot of an apartment complex located at 10202 Forum Park in Houston, Texas. B.G. told Officer Chaffin that she had been sexually assaulted the previous day. Another HPD officer took B.G. to Southwest Memorial hospital in Houston, Texas for a sexual assault examination.

At trial, B.G. testified about her encounter with appellant. On cross-examination, she admitted that she had ten previous felony convictions, including two convictions for delivery of a controlled substance in 1998 and 2005, three prostitution convictions in 2002, 2003 and 2004, a public lewdness conviction in 2004, and a possession-of-controlled-substance conviction in 2006.  

On January 29, 2004, complainant J.B. was walking toward the 10000 block of Bissonnet near the corner of Woodfair and Bissonnet. Appellant, driving a gold Jeep Cherokee, was traveling in the opposite direction from J.B. Appellant turned his vehicle around, drove past J.B. and parked at a convenience store. Although J.B. was unacquainted with appellant, she walked up to the Jeep and made an agreement with appellant to exchange consensual vaginal sex at appellant's home for a $30 payment. J.B. got into appellant's Jeep and they drove to appellant's home. Appellant drove onto the driveway outside the garage of his home. Appellant and J.B. left the Jeep and walked through appellant's dining room and into his den. J.B. sat on appellant's sofa as he left the den briefly. Appellant returned to the den, leaping onto J.B. and pointing his gun at her head. He forced J.B. to lie on her stomach on the floor. He covered J.B.'s eyes with duct tape. J.B. asked appellant if she could go to the restroom; he led her to his restroom and she used it. Appellant led J.B. back to the den and told her to get undressed. She complied and laid on her stomach on the floor. Appellant taped J.B.'s wrists and ankles, effectively immobilizing J.B.

Appellant left the den for five to ten minutes. He returned, untaped J.B.'s ankles and forced her to kneel. He told J.B. to perform oral sex on him and she complied. After the oral sex act was completed, appellant placed J.B. over his sofa face-forward and performed anal sex on her. J.B. did not resist because she was afraid that appellant would shoot her.

After the anal sex act was completed, appellant took J.B.'s jacket , placed it on the sofa and told her to sit on the jacket. He removed the tape from J.B.'s eyes and hands and allowed J.B. to clean herself in his bathroom. J.B. went into the bathroom, cleaned herself and got dressed. After J.B. left the bathroom, appellant taped her eyes and hands again. He led her into the garage and forced her into the back seat and made her lie down. Appellant drove for 10 minutes and then untaped J.B.'s hands and dropped her off behind a corner store near the corner of Country Creek and Woodfair in Houston, Texas. J.B. walked home.

On January 30, 2004, J.B. intended to walk to the HPD Westwood substation to report the sexual assault. On her way to the substation, she saw HPD officer I. Sanders monitoring traffic in the parking lot of a Chevron service station at the corner of Beechnut and Beltway 8 in Houston, Texas. J.B. reported the crime to Officer Sanders. Officer Sanders took J.B. to Southwest Memorial Hospital to get a sexual assault examination.

At trial, J.B. testified about her encounter with appellant. On cross-examination, she admitted that she had solicited eight men for prostitution, not including appellant. She also admitted that she had a theft conviction in 1994.  

On February 17, 2004, complainant K.B. was walking from a motel to a friend's house on Club Creek Drive in Houston, Texas. Appellant drove past her in his Jeep, turned around and parked at Emerald Apartments on Woodfair and Club Creek. Appellant offered K.B. $25 to come to his house to smoke marijuana with him. When K.B. told him she did not smoke marijuana, he asked if she would "ride with him" for $25. K.B. understood that appellant was asking her to negotiate an agreement of consensual sex for a payment of $25.

To confirm that appellant was not a police officer, K.B. touched appellant on his penis. Appellant responded by touching K.B. on her breast. K.B. agreed to the sex-for-payment arrangement and got into the passenger seat of appellant's Jeep and they drove behind another apartment complex located on Woodfair Drive in Houston, Texas. Appellant drove to the apartment complex, but he got nervous after he saw several people watching them.

Appellant drove near the fence line of another apartment complex. K.B. climbed over the console and into the back seat and took off her pants. Appellant followed K.B. into the back seat, knelt and pulled out his gun. Appellant forced K.B. to lie on her stomach and place her hands behind her back. Appellant used duct tape to bind K.B.'s ankles and wrists and placed duct tape over her face.

Appellant left the back seat and entered the driver's seat of his Jeep. K.B.'s view was only partially obstructed because she could see through a hole in the tape covering her face. Appellant drove away from the apartment complex while holding his gun to K.B.'s head. K.B.'s leg "popped loose" from the duct tape during their travel to appellant's home.

Appellant drove into his garage and closed the garage door behind the vehicle. He pulled K.B. out of the Jeep and led her into the den. The duct tape fell from K.B.'s eyes, and K.B. saw appellant standing naked next to his sofa. Appellant told K.B. to perform oral sex on him and K.B. complied. After she performed the oral sex act, he told K.B. to lie on her back. Appellant put on a condom and performed a vaginal sex act on K.B.

After he performed the vaginal sex act on K.B., he found her pants and dressed her. He also gave K.B. a glass of water. Appellant led K.B. out to the garage and forced her into the back seat of his Jeep. He drove away from his home for five to ten minutes and then decided to return to his home with K.B. Appellant returned to his garage and led K.B. out of the back seat of the Jeep. He led K.B. back to his sofa in his den and pulled down K.B.'s pants. Appellant forced K.B. to bend over his sofa face-forward and performed an anal sex act on her.

After he performed the anal sex act, he led K.B. out to the garage and placed tape over her entire head. Appellant led K.B. into the back seat of the Jeep and drove away from his home. He drove K.B. to a Kroger strip center in Stafford, Texas and dropped her off. Appellant also left K.B. with a steak knife to cut herself loose from the duct tape.

K.B. cut herself loose and found someone to give her a pen and paper to write down appellant's license plate number. She walked over to the Kroger store located at 220 FM 102 in Stafford, Texas and found Stafford Police Department Officer L. Whitby. K.B. approached Officer Whitby and reported her capture and sexual assault. K.B. still had the duct tape on her body and was carrying appellant's steak knife. Officer Whitby called an ambulance and K.B. was transported to Memorial Hospital in Fort Bend for a sexual assault examination.

At trial, K.B. testified about her encounter with appellant. On cross-examination, she admitted that she had thirteen previous felony convictions, including four theft convictions in 1992, 1995, 1996 and 2003, a reckless-injury-of- a-child conviction in 1994, an extortion conviction in 1995, two forgery conviction in 1997 and 2000, a possession-of-a-controlled-substance conviction in 1999, a credit-card-abuse conviction in 2000, a manufacturing-of-a-controlled-substance conviction in 2002, a delivery-of-a-controlled-substance conviction in 2002, and a theft conviction in 2003.   

On March 2, 2004, Missouri City Police Sergeant Pete Paske received an assignment to investigate J.B.'s sexual assault complaint. Sergeant Paske got information about J.B.'s complaint from HPD Detective K. Swatzel and HPD Sergeant G.C. Glenn. Sergeant Paske, Detective Swatzel, and Sergeant Glenn took J.B. around the Missouri City area to determine where she was taken by appellant. J.B. recalled a sign that read "Brightwood," and Paske determined that the sign actually read "Brightwater."

When the initial ride with J.B. did not locate appellant's home, Sergeant Paske decided to patrol the Brightwater neighborhood for several days looking for appellant's home or vehicle. Sergeant Paske saw appellant's Jeep and retrieved the license plate number. Using the license plate number, Sergeant Paske discovered the name of appellant's brother, Rosell Dinell Riley. Using this name, Sergeant Paske asked Detective Swatzel and HPD to assist in preparing a photo lineup. Detective Swatzel prepared the photo lineup using the picture of appellant's brother.

Sergeant Paske received the HPD photo lineup and showed the photos to J.B. after giving her an admonishment that the photo lineup might not show her assailant. J.B. viewed the photo spread but did not identify anyone as her assailant.

Sergeant Paske then discovered appellant's name and used driver's license information to get appellant's address. He asked the Texas Department of Public Safety ("DPS") to prepare a photo lineup, this time using appellant's picture. DPS returned a photo lineup and placed appellant's picture in the third position on the lineup. On March 15, 2004, Sergeant Paske showed the DPS photo lineup to J.B. She immediately identified appellant as her assailant and initialed and dated appellant's photo located in the third position on the photo lineup.

Based on J.B.'s identification, Sergeant Paske obtained a search warrant for appellant's home. Sergeant Paske found appellant's gun between his mattress and box spring. Appellant was arrested on March 16, 2004. On March 22, 2004, Paske showed a different copy of the DPS photo lineup to B.G. B.G. likewise identified appellant as her assailant. Paske did not show the photo spread to K.B.

At trial, the State presented evidence obtained from a fiber and duct tape anaylsis through testimony from DPS trace evidence analyst Faith Davis. Davis testified that the DPS lab performed a fiber and duct tape analysis on K.B.'s clothes and the duct tape used by appellant on K.B. Davis testified that the DPS lab found fibers from the outfit K.B. was wearing during her assault in appellant's home. The DPS lab also found that the duct tape used on K.B. matched one roll of duct tape found at appellant's residence.

The State also presented DNA evidence through the testimony of Jennifer Otto, a forensic DNA analyst employed by Identigene. Identigene received anal swabs and buccal swabs from K.B. and buccal swabs from appellant. Otto testified that K.B. and appellant could not be excluded as contributors to the DNA mixture detected in samples taken from K.B. Identigene also took samples of the stains from the jacket J.B. was wearing during her assault and a buccal swab from appellant. The DNA found on J.B.'s jacket matched the DNA from appellant's buccal swab.

Appellant presented no evidence during the guilt/innocence phase of the jury trial. However, he raised several objections at trial. He objected that the photo spread had not been properly authenticated or identified by [J.B.]. He also argued that the photo spread was impermissibly suggestive.

Appellant based his objection on J.B.'s testimony. J.B. testified that the photo spread shown to her when she made her out-of-court identification did not look like the photo spread shown to her at trial because "it was like in a larger format." J.B. also testified that the photo spread "was like in a big binder and there was a couple of photos already in there." She testified that she could not recall if the photo spread shown at trial displayed the same photos as the photo spread shown to her when she made her out-of-court identification, but she testified that the photo of appellant in the photo spread shown at trial was both larger than and in a different position from the photo of appellant in the photo spread she saw when she made her out-of-court identification. Appellant renewed his objection during Sergeant Paske's testimony prior to B.G.'s testimony. However, B.G. was not asked about the photo spread at trial. J.B., K.B., and G.B. all immediately identified appellant at trial when asked if they saw their attacker in the courtroom.

Appellant also raised an objection to the jury charge before the trial court read the charge to the jury. The trial court convened an on-the-record bench conference to hear appellant's objection. Appellant's counsel requested that language be included in the jury charge which would instruct the jury that, in each case, it could find that appellant committed the lesser included offense of aggravated assault if it found that he "commit[ted] an assault" on the complainant by "intentionally or knowingly causing bodily injury" to the complainant and that he committed aggravated assault if he "commit[ted] an assault, as defined above, and cause[d] severe bodily injury to the [complainant]." He requested that the charge state that "if the jury does not find [appellant] guilty of aggravated sexual assault, you will move onto the lesser included offense of aggravated assault."

Appellant's counsel argued that, in addition, the charge:

should say that now if you find from the evidence beyond a reasonable doubt that on about the so and so date that this occurred in Fort Bend County, Texas, [appellant] did then and there intentionally or knowingly strike or beat the complainant with his fist or stomp and kick [the complainant] with his feet or hands, thereby causing serious bodily injury to the complainant as alleged in the indictment, then you'll find the defendant guilty of aggravated assault as charged. And to wit, that a handgun was used in the commission of said assault. That would be a period. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, comma, you will acquit the defendant of aggravated assault.  

The trial court denied appellant's request. Appellant was convicted of three offenses of aggravated sexual assault.

Legal and Factual Sufficiency

In his first and second points of error, appellant argues that the evidence presented at trial is legally and factually insufficient to support his three convictions for aggravated sexual assault.

Standard of Review

To determine the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and then determine, based on that evidence and reasonable inferences from it, whether a rational juror 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, 2790 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In conducting this review, we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). But evidence that is legally sufficient to support a conviction may not be factually sufficient to support conviction. Rollerson, 227 S.W.3d at 724.

"Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence."   Id.    A factual sufficiency review involves three ground rules.   Lancon v. State  , 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). First, we must recognize that a jury has already passed on the facts, and we must accord the jury the proper deference to avoid substituting our judgment for that of the jury.   Id.   at 704-05 (citing   Clewis v. State  , 922 S.W.2d 126 (Tex. Crim. App. 1996)). Second, when we find the facts determined by the jury to be insufficient to affirm a conviction, we must clearly lay out and explain how the evidence supporting the verdict is too weak on its own, or how contradicting evidence greatly outweighs evidence supporting the verdict.   Id.   at 705. Finally, we view all of the evidence in a neutral light when conducting this review.   Id.   We may set aside a verdict only when the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust.    Id.   (citing   Cain v. State  , 958 S.W.2d 404, 406 (Tex. Crim. App. 1997)).

     Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence.   Rollerson  , 227 S.W.3d at 724.     "The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions 'albeit to a very limited degree.'"   Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)   (quoting   Watson v. State  , 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006)). In reality, a factual sufficiency review is barely distinguishable from a legal sufficiency review.   Id.  

Aggravated Sexual Assault

A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus, mouth, or sexual organ of another person without the person's consent and uses or exhibits a deadly weapon in the course of the same criminal episode. Tex. Penal Code Ann. § 22.021(a) (Vernon Supp. 2008); see also Washington v. State, 127 S.W.3d 197, 204 (Tex. App.--Houston [1st Dist.] 2003, pet. dismissed) (holding evidence not rendered factually insufficient to support conviction for aggravated sexual assault due to fact that victim's testimony in second trial was inconsistent with that she gave in first trial; any inconsistency in victim's testimony went to her credibility, and jury could have reasonably believed that victim was assaulted even if she failed to remember specific details surrounding assault clearly or was otherwise inconsistent); see also Garrett v. State, 998 S.W.2d 307, 311-12 (Tex. App.--Texarkana 1999, pet. ref'd) (holding evidence was legally and factually sufficient to establish that defendant used or exhibited deadly weapon to facilitate offense of aggravated sexual assault; victim testified that defendant had gun in his hand while he sexually assaulted her, and she yielded to his demands because he had gun, although defendant claimed that he set gun aside before having consensual sex with victim); see also Guevara v. State, 4 S.W.3d 771, 778 (Tex. App.--San Antonio 1993, no pet.) (holding evidence in aggravated sexual assault prosecution was legally sufficient to support finding that defendant used deadly weapon when, on both direct and cross examination, complainant testified that she saw gun, recognized it as deadly weapon and was threatened by it); see also Page v. State, 819 S.W.2d 883, 887-88 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd) (holding evidence of nonconsensual nature of sexual intercourse was legally sufficient to sustain defendant's conviction of aggravated sexual assault of his estranged wife that occurred after defendant held gun on her and ordered her into bedroom; even though State never specifically asked complainant whether or not she consented to sexual intercourse, complainant did testify that she did not want to have sexual intercourse and that she was afraid that defendant would kill her if she did not comply).

A complainant's uncorroborated testimony alone is factually sufficient to support a conviction for aggravated sexual assault under section 22.021. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App.1978); see also Benton v. State, 237 S.W.3d 400, 404 (Tex. App.--Waco 2007, pet. ref'd). The State has no burden to produce corroborating or physical evidence, and the jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.1991); Benton v. State, 237 S.W.3d 400, 404 (Tex. App.--Waco 2007, pet. ref'd).

Trial Cause No. 39915A

Appellant argues that the evidence presented at trial was legally insufficient to support his conviction for the aggravated sexual assault of K.B. because there was no evidence that appellant used or exhibited a deadly weapon in the course of the same criminal episode. Appellant also argues that the evidence presented at trial was legally insufficient to support his conviction for the aggravated sexual assault of K.B. because of a lack of physical evidence and corroborating testimony. Appellant also argues that the evidence presented at trial was factually insufficient because K.B.'s testimony was unreliable due to unspecified inconsistencies, lack of memory, and motive to lie due to her previous convictions.

K.B. testified that appellant used a handgun to force her to have vaginal and anal sex without her consent. The State presented fiber analysis evidence which demonstrated that fibers from K.B.'s clothing matched fiber residue found in appellant's home. The State also presented duct tape analysis evidence that the duct tape used on K.B. matched one roll of duct tape found at appellant's home. It also presented DNA evidence that could not exclude K.B. or appellant from a sample taken from K.B.'s anal swabs. Appellant presented no evidence during the guilt/innocence phase of the trial.     

A complainant's uncorroborated testimony is factually sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07. Also, the jury is free to determine the credibility of the witnesses. Chambers, 805 S.W.2d at 461; Benton, 237 S.W.3d at 404. Viewing the evidence in a light most favorable to the verdict, we conclude that a rational jury could find beyond a reasonable doubt that appellant committed aggravated sexual assault of K.B. See   Rollerson, 227 S.W.3d at 724. Viewing the evidence presented regarding the aggravated sexual assault of K.B. neutrally, we conclude that it is not so weak as to render the verdict clearly wrong or manifestly unjust. See id.; see also   Lancon  , 253 S.W.3d at 704. We conclude, therefore, that the     evidence presented at trial that appellant committed aggravated sexual assault of K.B. is both legally and factually sufficient to support his conviction in trial cause number 39915A.Trial Cause No. 39916A

Appellant argues that the evidence presented at trial was legally insufficient to support his conviction for the aggravated sexual assault of B.G. because there was no evidence that appellant used or exhibited a deadly weapon in the course of the same criminal episode. Appellant also argues that the evidence presented at trial was factually insufficient to support his conviction for the aggravated sexual assault of B.G. because the forensic nurse examiner found no trauma on B.G.'s vaginal and anal areas during her examination.

B.G. testified that appellant used a handgun to force her to have vaginal oral and anal sex without her consent. B.G. identified appellant at trial. Stephen Montoya testified that he was at his home located on appellant's street and saw B.G. running naked down the street and searching for help. Montoya also testified that he saw appellant drive near his house, brandish a gun toward B.G., and force her into his vehicle. Appellant presented no evidence during the guilt/innocence phase of the trial.     

The State had no burden to produce medical evidence corroborating B.G.'s testimony. See Tex. Code Crim. Proc. Ann. art. 38.07. Moreover, the jury determined the credibility of B.G.'s testimony and was free to "believe all, some, or none of the testimony." Chambers, 805 S.W.2d at 461; Benton, 237 S.W.3d at 404. Viewing the evidence in a light most favorable to the verdict, we conclude that a rational jury could find beyond a reasonable doubt that appellant committed aggravated sexual assault of B.G. See Rollerson, 227 S.W.3d at 724. Viewing the evidence neutrally, we further conclude that the evidence presented regarding aggravated sexual assault was not so weak as to render the verdict clearly wrong or manifestly unjust. See id. We conclude that the     evidence presented at trial that appellant committed aggravated sexual assault of B.G. is both legally and factually sufficient to support the conviction in trial cause number 39916A.  

Trial Cause No. 39917A

Appellant argues that the evidence presented at trial was legally insufficient to support his conviction for the aggravated sexual assault of J.B. because of a lack of physical evidence and corroborating testimony linking him to the offense. Appellant argues that the evidence presented at trial was factually insufficient to support his conviction for the aggravated sexual assault of J.B. because the forensic nurse examiner found no trauma on B.G.'s vaginal and anal areas during her examination.    J.B. testified that appellant used a handgun to force her to have oral and anal sex without her consent. The State presented DNA evidence demonstrating that appellant's DNA was present on J.B.'s clothing. Appellant presented no evidence during the guilt/innocence phase of the trial.   Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could find beyond a reasonable doubt that appellant committed the aggravated sexual assault of J.B. See Rollerson, 227 S.W.3d at 724.

The State had no burden to produce medical evidence corroborating B.G.'s testimony. See Tex. Code Crim. Proc. Ann. art. 38.07. Moreover, the jury determined the credibility of J.B.'s testimony and was free to "believe all, some, or none of the testimony." Chambers, 805 S.W.2d at 461; Benton, 237 S.W.3d at 404. Therefore, we conclude that the evidence presented regarding aggravated the sexual assault was not so weak as to render the verdict clearly wrong or manifestly unjust. See Rollerson, 227 S.W.3d at 724. We conclude that the     evidence presented at trial that appellant committed aggravated sexual assault of J.B. is both legally and factually sufficient to support the conviction in trial cause number 39917A.    

Tainted In-Court Identification

In his third point of error, appellant argues that in each case he was unfairly prejudiced by an in-court identification that was tainted by an impermissibly suggestive pre-trial photographic identification. Although appellant complains about the photo array in all three cases, the photo array complained of--State's Exhibit 3--was shown only to J.B. and B.G. It was never shown to K.B., and,while G.B. was shown the array, she was not asked about it at trial. Appellant thus bases his contention that the out-of-court photographic identification procedure was impermissibly suggestive on J.B's testimony at trial that the photo array admitted into evidence was not the same array as previously presented to her and that the photographs of the individuals in the array were not located in the same places as previously presented to her.

Analysis

An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification.   Ibarra v. State  , 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). The test is whether, considering the totality of the circumstances, "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."  Id.   (citing Simmons v. United States  , 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). Reliability is the critical question.   Id.    If the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed "reliable," "reliability [being] the linchpin in determining the admissibility of identification testimony."   Id.     Thus, an appellate court applies a two-step analysis to determine the admissibility of an in-court identification, asking (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a very substantial likelihood of irreparable misidentification.   Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995); Page v. State, 125 S.W.3d 640, 647 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).    

A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Simmons, 390 U.S. at 384, 88 S. Ct. at 971; Barley, 906 S.W.2d at 33-34; Page, 125 S.W.3d at 646. Suggestiveness may arise from the manner in which a pretrial identification procedure is conducted. Page, 125 S.W.3d at 647. For example, a police officer may point out the suspect or suggest that a suspect is included in a lineup or photographic array. Id. Also, the content of a lineup or photographic array itself may be suggestive if the suspect is the only individual who closely resembles the description given by the witness. Id. Furthermore, an individual procedure may be suggestive or the cumulative effect of procedures may be suggestive. Id.

   If a pretrial identification procedure was impermissibly suggestive, we weigh five exclusive factors against the corrupting effect of the suggestive identification procedure in assessing the reliability of an in-court identification. Neil v. Biggers  , 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). These are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Id.   We consider the five Biggers   factors, all issues of historical fact, deferentially in a light favorable to the trial court's ruling.   Id.    The factors, viewed in this light, are then weighed   de novo   against "the corrupting effect" of the suggestive pretrial identification procedure.   Page, 125 S.W.3d at 647   (citing   Loserth v. State  , 963 S.W.2d 770, 773-74 (Tex. Crim. App. 1998)).

Even if an out-of-court identification procedure is impermissibly suggestive, however, an in-court identification may still be admitted "as long as the record reveals that the witness' prior observation of the accused was sufficient to serve as an independent origin for the in-court identification." Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983).

Here, appellant failed to show that the photo spread was impermissibly suggestive, even if J.B.'s testimony that appellant's photo was in a different place when she was shown the photo spread with his photo was credited by the finder of fact as true. Jurors are free to "believe all, some, or none of the testimony." Chambers, 805 S.W.2d at 461. Appellant does not state how the photo array J.B. remembered as different was so conducive to misidentification that its use at trial denied appellant due process of law, and we see nothing in the photo array or its use that rises to the level of an "impermissibly suggestive" pre-trial identification procedure. See Barley, 906 S.W.2d at 33.

Moreover, even if the photo array had been shown to be impermissibly suggestive, the record shows an independent basis for the in-court identification of each complainant. See Jackson, 657 S.W.2d at 130. J.B., B.G., and K.B. all quickly identified appellant at trial. Each was certain and definite about her identification. Each had ample time to view appellant at the time of the crime. Thus, we hold that the trial court properly admitted the in-court identifications

We overrule appellant's third point of error.

Lesser Included Offense in Jury Charge

In his fourth point of error, appellant argues that the trial court erred in its refusal to instruct the jury on the lesser included offense of aggravated assault in addition to the offense of aggravated sexual assault with which he was charged in each case. For each of the three cases, appellant makes an identical argument that there is unchallenged evidence that each of the complainants had consensual sex with appellant and there was evidence that appellant had a handgun in the home where the consensual sex occurred. Therefore, appellant argues, "there was evidence presented for the jury to rationally consider the lesser-included offense of aggravated assault." He further argues that "under the evidence presented, if the jury found that any assault occurred at all, it was an aggravated assault" and to find that if "any assault occurred at all, it was an aggravated assault."

Analysis

The Texas Code of Criminal Procedure defines a lesser included offense as follows:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). 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. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1999)).

The Court of Criminal Appeals has held that we must use a "cognate-pleadings" approach when determining whether there may be a conviction for a lesser included offense in a particular case. Hall, 225 S.W.3d at 535. The determination is a two-step analysis. Id. The first step in the analysis is to compare the elements of the greater offense and the lesser offense without any reference to the facts of the case. Id. at 535. This is a question of law. Id. Applying the first step to a particular case, we consider only the statutory elements of the charged offense as modified by the particular allegations in the indictment. Id. at 536. We then compare the modified elements with the elements of the alleged lesser included offense and decide whether the elements of the alleged lesser included offense are "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Id. (quoting Tex. Code Crim. Proc. Ann. art. 37.09(a) (Vernon 2006)). The second step in the analysis is to determine whether there is evidence to support giving the instruction to the jury. Hall, 225 S.W.3d at 536. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. In other words, the evidence must establish the lesser included offense as a "valid, rational alternative to the charged offense." Id.

Section 22.021(a) of the Texas Penal Code provides, in relevant part, that a person commits the offense of aggravated sexual assault:

(1) if the person

(A) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent

(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without the person's consent; or

(iii) 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 [and]

. . .

(2) if:

(A) the person:

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the court of the same criminal episode;

(ii) by acts or words places the victim in fear that death, serious bodily injury, or kidnaping will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnaping of any person; [or]

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode.

. . . .

() An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).

. . . .

Tex. Penal Code Ann. § 22.021(Vernon Supp. 2008).

Section 22.011(b) of the Penal Code provides that a sexual assault is without consent if:

(1) the actor compels the other person to submit or participate by the use of physical force or violence; [or]

(2) 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.

Tex. Penal Code Ann. § 22.011(b) (Vernon Supp. 2008).

Section 22.02(a) of the Penal Code provides, in relevant part, that a person commits the offense of aggravated assault if he commits an assault as defined in section 22.01 and he:

(1) causes serious bodily injury to another, including the person's spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2008).

Section 22.01(a) provides that a person commits the offense of assault if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2008).

At trial, appellant argued that evidence that sexual contact was consensual in each case supported the inclusion in the charge of the lesser included offense of aggravated assault in addition to the charged offense of aggravated assault. Appellant requested inclusion of the following language:

[Appellant]: Our law provides that a person commits an assault if the person intentionally or knowingly causes bodily injury to another, including the person's spouse, period. A person commits aggravated assault if the person commits an assault, as defined above, and causes severe bodily injury to the other, including a person's spouse, period. And by the term bodily injury is meant physical pain, illness or impairment or physical condition, period. By the term serious bodily injury is meant bodily injury that creates a substantial risk of death or disfigurement, comma, or protracted loss or impairment of the function of any bodily member or organ. Three, a person acts intentionally, or with intent, when it is his conscious objective or desire to cause the result, period. A person acts knowingly or with knowledge when he is aware that his conduct is reasonably certain to cause the result. I believe that that [sic] language should be included as a lesser included offense regarding the aggravated assault, and should include to wit, with a--, I believe the indictment says handgun. I'm not certain. I have the indictment. . . . Further, it should say, and if, and if the jury does not find [appellant] guilty of aggravated sexual assault, you will move onto the lesser included offense of aggravated assault. Now, it should say that now if you find from the evidence beyond a reasonable doubt that on about the so and so date that this occurred in Fort Bend County, Texas, [appellant] did then and there intentionally or knowingly strike or beat the complainant with his fist or stomp and kick [the complainant] with his feet or hands, thereby causing serious bodily injury to the complainant as alleged in the indictment, then you'll find the defendant guilty of aggravated assault as charged. And to wit, that a handgun was used in the commission of said assault. That would be a period. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, comma, you will acquit the defendant of aggravated assault.

The trial court denied appellant's request.

Appellant's proferred charge did not reflect either the indictments in the three cases or the evidence offered at trial. Nor did it accurately state the requirements for a finding of aggravated assault.

In cause number 39915A, the State indicted appellant for the offense of aggravated sexual assault of K.B. while using and exhibiting a deadly weapon. The indictment stated in relevant part:

[Appellant] intentionally and knowingly cause[d] the penetration of the vagina of [K.B.] by [appellant's] sexual organ, without the consent of [K.B.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.

[Appellant] intentionally and knowingly cause[d] the penetration of the anus of [K.B.] by [appellant's] sexual organ, without the consent of [K.B.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.  

In cause number 39916A, the State the State indicted appellant for the offense of aggravated sexual assault of B.G. while using and exhibiting a deadly weapon, stating:

[Appellant] intentionally and knowingly cause[d] the penetration of the vagina of [B.G.] by [appellant's] sexual organ, without the consent of [B.G.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.

[Appellant] intentionally and knowingly cause[d] the penetration of the anus of [B.G.] by [appellant's] sexual organ, without the consent of [B.G.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.

[Appellant] intentionally and knowingly cause[d] the penetration of the mouth of [B.G] by [appellant's] sexual organ, without the consent of [B.G], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.  

Finally, in cause number 39917A, the State indicted appellant for the offense of aggravated sexual assault of J.B. while using and exhibiting a deadly weapon, stating:    

[Appellant] intentionally and knowingly cause[d] the penetration of the mouth of [J.B.] by [appellant's] sexual organ, without the consent of [J.B.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.

[Appellant] intentionally and knowingly cause[d] the penetration of the anus of [J.B.] by [appellant's] sexual organ, without the consent of [J.B.], and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, to-wit, a handgun.  

     Each of the indictments in these three cases alleged that appellant committed the offense of aggravated sexual assault by intentionally or knowingly causing the penetration of another person's mouth, vagina, or anus with his sexual organ without the consent of the other person while using and exhibiting a deadly weapon in the course of the same criminal episode. Tex. Penal Code Ann. § 22.021. In none of these cases did the indictment charge that appellant did then and there intentionally and knowingly strike or beat the complainant with his feet or stomp or kick the complainant with his feet or hands while using a handgun, thereby causing serious bodily injury to the complainant.

In addition, in each case, the evidence clearly showed that while the complainant may have initially consented to have sexual relations with appellant, the encounter swiftly turned to non-consensual sexual penetration when appellant compelled each complainant to submit by threatening each with a handgun, satisfying the definition of non-consensual sexual assault set out in section 22.01(b) of the Penal Code.

Finally, under the theory of aggravated assault proffered by appellant, a person commits aggravated assault if he intentionally or knowingly causes serious bodily injury to another   while using or exhibiting a deadly weapon. Tex. Penal Code Ann. § 22.01; 22.02(a). This is not the case. Under section 22.02(a) of the Penal Code, a person commits the offense of aggravated assault if, while committing assault, he "causes serious bodily injury to another" or "uses or exhibits a deadly weapon." Tex. Penal Code Ann. § 22.02(a).   

Appellant was charged in each of these three cases with committing the offense of aggravated sexual assault while using a deadly weapon, and the evidence supported each element of the charge. Aggravated assault consisting of appellant's causing each complainant serious bodily injury by stomping or kicking was not charged under the indictments in these cases, and, if it had been, it would not have been established by proof of the same facts, or less than all the facts necessary to establish appellant's commission of the offense of aggravated assault as charged in the indictments. See Tex. Penal Code Ann. § 22.021(a) (aggravated sexual assault) and 22.02(a) (aggravated assault). Therefore, we hold that appellant failed to satisfy the first step of the Hall analysis in any of the three charged cases. Tex. Code Crim. Proc. Ann. art. 37.09(a); Hall, 225 S.W.3d at 536.

Appellant also failed to satisfy the second prong of Hall in any of the cases. Appellant argues that there is unchallenged evidence that each of the three complainants had consensual sex with him. However, the State presented testimony from the three complainants that appellant forced them to perform oral, anal, and/or vaginal sex without their consent while using or exhibiting a deadly weapon. Because there is no proof that appellant did not sexually assault the complainants without their consent while using or exhibiting a deadly weapon, appellant fails to satisfy both steps of the Hall analysis. See Hall, 225 S.W.3d at 536. We hold that appellant was not entitled to an instruction on aggravated assault in any of the three cases.

We overrule appellant's fourth point of error.

Conclusion

We affirm the judgments of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.4.

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1.

See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008).