Charles Ray Blacklock v. State

Affirmed and Majority and Dissenting Opinions filed October 22, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00307-CR
CHARLES RAY BLACKLOCK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1474533
DISSENTING OPINION
Because I disagree with the majority as to the sufficiency of the evidence in
regard to the aggravated sexual assault charge, I respectfully dissent.
There was no evidence adduced at trial that the complainant was placed in
fear of imminent death or threat of serious bodily injury, and the cases cited by the
majority do not support the majority’s conclusion that sufficient evidence was
introduced to support the aggravating element of the offense.
Here, the aggravating element at issue is whether in the commission of the
sexual assault, appellant, by his acts or words, placed the victim in fear that death
or serious bodily injury would be imminently inflicted on her. See Tex. Penal
Code § 22.021(a)(2)(A)(ii).
I.
TRIAL TESTIMONY
The majority opinion recites that the complaining witness “remembered
being hit so hard from behind that she fell to the ground,” but this was not her
testimony. The complaining witness testified that she was walking home when she
felt an impact like a push or shove and fell to the ground. She stated she did not
remember anything else that happened after that moment, she did not remember a
gun, and the next thing she remembered was a police officer standing over her.
Because she felt pain that made her think someone had sexually assaulted her, she
spoke with the police officer and went to the hospital for an examination. DNA
specimens were collected.
The complaining witness did not testify that appellant, through words or
conduct, did anything to cause her to be in fear for her life. The complaining
witness did not testify that she was threatened with death, physical assault, or
serious bodily injury, or was in any way physically restrained during the assault.
The complaining witness testified about an unrelated incident where she “had a
pistol put to her head” stating that when she spoke with the officer who took the
report of the rape, she confused the prior incident with the rape incident. The
complaining witness stated she did not remember a gun being used during the rape
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incident. She also testified that she did not remember telling the officer a gun was
used during the rape but did testify the person who put the gun to her head was not
the appellant. This version of the incident is further supported by the
complainant’s testimony that she was pushed from behind and did not remember
anything until the officer was standing over her. There was no testimony from the
complaining witness that she was in fear of imminent bodily harm, or in fear of
death; nor was there any testimony from any of the witnesses that the complaining
witness expressed fear or made any statements indicating she was in fear for her
life. There was no testimony regarding violence or threats supporting a finding
that the complaining witness was in fear for her life. On cross-examination, the
complaining witness testified the appellant never punched her in the face, or hit her
or bruised her, and agreed with defense counsel that her medical records from the
examination indicated there were no injuries to her body.
Dr. Sidhu, the physician who performed the examination on the
complainant, testified she saw no evidence of injuries or trauma to the genitals or
body of the complainant. Dr. Sidhu testified the physical examination of the
complainant was normal and there was no evidence of the complainant being
physically hit with anything or punched. Dr. Sidhu also testified that the
complainant told her she was not injured during the assault.
Dr. Sidhu testified that the medical records under “history” provide the
complaining witness voluntarily got into a vehicle and was “shoved out” after the
rape. The medical records under “history” further provide the complainant was
sexually assaulted at gunpoint, and that she stated she was not injured during the
assault. Dr. Sidhu admitted she had no personal knowledge of these events, that
she could not testify as to any guns, weapons, or physical force in regard to the
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incident, and that all of the information under “history” was provided by the
complainant.
Officer Garcia, the patrol officer who assisted the complaining witness after
the incident, testified that his report stated there was no evidence of any injuries or
bruises to the complainant and he found no weapons in the area.
II.
JURY FINDING REGARDING USE OF A WEAPON
The jury answered “We do not” to a special issue jury charge submitted by
the State, which asked the jury to determine, beyond a reasonable doubt, whether
the appellant (defendant) “used or exhibited a deadly weapon, namely, a firearm,
during the commission of the offense for which he has been convicted or during
the immediate flight therefrom.” This demonstrates the jury did not believe a gun
was used during the incident, despite the trial testimony of police officers that the
police report indicated a gun was used, and testimony from the examining
physician that the medical records indicate the complaining witness was assaulted
at gunpoint.
The majority misses the mark as to the relevance of this finding. In this
circumstance, the error the majority makes is in finding that the evidence is
factually and legally sufficient to establish “that appellant’s actions caused the
complainant to fear for her life during the sexual assault.” Although the jury’s
finding regarding the use of a weapon is not dispositive of the issue of the
aggravated finding, the weapon finding indicates the lack of evidence found by the
jury to support the aggravated factor.
In sum, neither the facts nor the law supports the majority’s opinion.
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III.
THE MAJORITY’S CASES DO NOT SUPPORT THE AGGRAVATING
ELEMENT OF THE OFFENSE
Although a jury is entitled to consider whether the objective conduct and
totality of the circumstances placed the complaining witness in fear of death or
serious bodily injury, we review the evidence to determine whether the acts, words,
or deeds of the appellant are sufficient to place a reasonable person in the
complainant’s circumstances in fear of death or serious bodily injury. Tinker v.
State, 148 S.W.3d 666, 671 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
The cases cited by the majority to support the aggravating element of the
offense are distinguishable from this case because all of the cases cited include
testimony by the victim of the fear of death or serious bodily injury, as well as
circumstances and conduct supporting the complaining witnesses’ testimony. See
Tinker, 148 S.W.3d at 668, 670 (defendant followed the complainant into her
house, became physically violent, and sexually assaulted her, causing complainant
to suffer physical injuries consistent with forced sexual activity, including a serious
and debilitating shoulder injury); Lewis v. State, 984 S.W.2d 732, 734 (Tex.
App.—Fort Worth 1998, pet. ref’d) (victim testified appellant broke into her
apartment, splintering the door frame and door jamb, and told victim if she obeyed
his commands she would not be hurt; victim further testified that she feared
appellant would rape her and kill her; appellant repeatedly raped her, and victim
cried out in physical pain and prayed for her life; then, appellant put victim in a
closet, and he returned and raped her again and the victim thought he was going to
kill her); Brown v. State, 960 S.W.2d 265, 268 (Tex. App.—Corpus Christi 1997,
no pet.) (complainant testified she was scared and in fear for her life when she
heard sound as though knife was being opened, when complainant struggled
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appellant told her if she remained still she would not get hurt); Dalton v. State, 898
S.W.2d 424, 429 (Tex. App.—Fort Worth 1995, pet. ref’d) (defendant entered
apartment in the middle of the night, threatened to hurt complainant, possessed
superior physical strength and forced complainant to engage in sex, complainant
“felt something ‘cold’ at her back” during sexual assault and testified she feared
for her life); Selvog v. State, 895 S.W.2d 879, 882 (Tex. App.—Texarkana 1995,
pet. ref’d) (defendant stated he would kill the complainant if she did not cooperate,
choked complainant, and threw her to the ground; complainant testified she believe
he would kill her); Ortiz v. State, 804 S.W.2d 177, 179 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d) (defendant hit the complainant in the lip and forced
complainant to submit to sodomy; ER doctor testified it looked like complainant
had been beaten up and injuries were the result of a good deal of force;
complainant testified he was scared and in pain and believed appellant was going
to continue to hurt him, and called for help); Dacquisto v. State, 721 S.W.2d 603,
604 (Tex. App.—Amarillo 1986, pet. ref’d) (complainant testified defendant
entered her apartment in the middle of the night, dragged her by her shoulders to
the floor, pinned her body to the floor, told her to stop screaming or he would
“have to hurt her,” taped complainant’s mouth and raped her, and she testified she
feared for her life); Carter v. State, 713 S.W.2d 442, 445 (Tex. App.—Fort Worth
1986, pet. ref’d) (complainant testified she was gagged, tied up, and thrown to the
floor in the course of the sexual assault by defendant, told not to scream or he
would hurt her, and testified she feared for her life). These cases all contain
testimony supporting the aggravated element of the crime.
Unlike the aforementioned cases cited by the majority, the critical facts and
testimony supporting the element of aggravating circumstances is not present here.
The record is devoid of testimony or physical evidence supporting fear of death or
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serious bodily injury. Because the evidence is legally insufficient to support
appellant’s conviction for aggravated sexual assault, I disagree with the majority’s
opinion on this issue.
IV.
REFORMATION
Appellant is not entitled to, nor does he seek, an acquittal. I would reform
appellant’s conviction to reflect that appellant was convicted of the lesser-included
offense of sexual assault. In Thornton v. State, the Court of Criminal Appeals
clarified when a court of appeals should reverse a judgment and remand for
modification to reflect a conviction of a lesser-included offense versus when a
judgment should be reversed and an acquittal rendered:
[A]fter a court of appeals has found the evidence insufficient to
support an appellant’s conviction for a greater-included offense, in
deciding whether to reform the judgment to reflect a conviction for a
lesser-included offense, that court must answer two questions: 1) in
the course of convicting the appellant of the greater offense, must the
[fact finder] have necessarily found every element necessary to
convict the appellant of the lesser-included offense; and 2) conducting
an evidentiary sufficiency analysis as though the appellant had been
convicted of the lesser-included offense at trial, is there sufficient
evidence to support a conviction for that offense? If the answer either
of these questions is no, the court of appeals is not authorized to
reform the judgment. But if the answer to both are yes, the court is
authorized—indeed required—to avoid the “unjust” result of an
outright acquittal by reforming the judgment to reflect a conviction for
the lesser-included offense.
425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014); accord Walker v. State, 594
S.W.3d 330, 338 (Tex. Crim. App. 2020) (same); see also Britain v. State, 412
S.W.3d 518, 521 (Tex. Crim. App. 2013) (appellate court may render judgment of
conviction for a lesser-included offense where there is proof beyond reasonable
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doubt of all elements of lesser-included offense); Bowen v. State, 374 S.W.3d 427,
432 (Tex. Crim. App. 2012) (holding when the State fails to prove an aggravating
element of an offense, but the State otherwise produces sufficient evidence to
support the conviction of a lesser-included offense, the correct remedy is to reform
the judgment to reflect a conviction for the lesser-included offense).
Following these principles, the judgment in this case should be reformed.
Sexual assault is a lesser included offense of aggravated sexual assault. Ghoulson
v. State, 5 S.W.3d 266, 274 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
By convicting appellant of aggravated sexual assault, the jury necessarily found
that appellant committed the offense of sexual assault. See Tex. Penal Code §
22.011 (sexual assault), § 22.021 (aggravated sexual assault).
Turning to whether legally sufficient evidence supports a conviction for the
lesser offense, although not required for reformation under Thornton, the jury was
instructed on the lesser-included offense of sexual assault. As set forth in the
majority memorandum opinion, there is evidence that is sufficient beyond a
reasonable doubt to support the lesser offense of sexual assault. Viewing the
evidence in the light most favorable to the verdict, the evidence is sufficient to
convict appellant of the lesser-included offense of sexual assault. By doing so, this
“serves to give effect to the jury’s verdict by tying reformation to what the jury
necessarily found when it reached [its] verdict.” See Walker, 594 S.W.3d at 338.
Appellant asks this court to reverse his conviction and remand the case for
further proceedings. In the alternative, appellant requests that this court reform his
conviction to sexual assault and remand his cause for a new sentencing trial. The
proper disposition is to reverse the trial court’s judgment, remand to the trial court
to reform the judgment to reflect a conviction for the lesser included offense and
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hold a new punishment hearing attendant to this post reformation conviction. See
Thornton, 425 S.W.3d at 307; Williams v. State, No. 19-00532-CR, 2020 WL
3863118, at *4 (Tex. App.—Houston [14th Dist.] July 9, 2020, no pet. h.) (mem.
op., not designated for publication).
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant
(Zimmerer, J., Majority).
Publish – Tex. R. App. P. 47.2(b)
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