ACCEPTED 14-14-00816-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/13/2015 1:02:28 PM CHRISTOPHER PRINE CLERK
NO. 14-14-00816-CR
IN THE COURT OF APPEALS FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS FOURTEENTH DISTRICT 2/13/2015 1:02:28 PM CHRISTOPHER A. PRINE Clerk HOUSTON, TEXAS
NO. 1381491
IN THE TRIAL COURT
262ND JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
JESSE RALPH DAINS § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
BRIEF FOR APPELLANT
ALLEN C. ISBELL 202 Travis, Suite 208 Houston, Texas 77002 713/236-1000 Fax: 713/236-1809 STATE BAR NO. 10431500
COUNSEL ON APPEAL NAMES AND ADDRESSES OF ALL PARTIES AT THE TRIAL COURT’S FINAL JUDGMENT
Trial Judge
Honorable Denise Bradley, Judge Presiding 262nd District Court 1201 Franklin, 15th Fl., Houston, Texas 77002
Appellant/Defendant
Mr. Jesse Ralph Dains #01958039 Stiles Unit 3060 FM 3514, Beaumont, Texas 77705
Appellant’s Counsel
Mr. Allen C. Isbell - Counsel on Appeal 202 Travis, Suite 208, Houston, Texas 77002
Mr. Victor Wisner - Counsel at Trial 8431 Katy Fwy., Suite 101, Houston, Texas 77024
Attorneys for the State of Texas
Mr. Alan Curry - Assistant District Attorney on Appeal 1201 Franklin, Ste. 600, Houston, Texas 77002
Ms. Jamie Burro - Assistant District Attorney at Trial Ms. Jamie Morrisson - Assistant District Attorney at Trial 1201 Franklin, 6th Fl., Houston, Texas 77002
c:\appeals\dains\brief for appellant ii TABLE OF CONTENTS
PAGE
Names and Addresses of All Parties at the Trial Court’s Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1
Point of Error Number One APPELLANT SUFFERED EGREGIOUS HARM BY THE TRIAL COURT’S FAILURE TO DEFINE PROPERLY “INTENTIONALLY AND “KNOWINGLY” AS APPLIED TO APPELLANT’S ALLEGED CONDUCT BECAUSE APPELLANT’S DEFENSE AT TRIAL WAS THAT HE “BLACKED OUT,” WHICH RAISED THE ISSUE OF WHETHER HE ACTED WITH THE REQUIRED CULPABLE MENTAL STATE WITH REGARD TO HIS ALLEGED CONDUCT. . . . . . . . . . 1
Statement of Facts Point of Error Number One . . . . . . . . . . . . . . . . 2
Summary of the Argument Point of Error Number One . . . . . . . . . . 10
Argument and Authorities Point of Error Number One . . . . . . . . . . 11
Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
c:\appeals\dains\brief for appellant iii INDEX OF AUTHORITIES
CASES PAGE
Aekins v. State, 447 S.W.3d 270, 286-287 (Tex. Crim. App. 2014) . . . . . 12
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim .App. 1985) . . . . . . . 13
Garza v. State, 794 S.W.2d 497, 500 (Tex. App. Corpus Christi 1990, pet.ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010) . . . . . 12
Huffman v. State, 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) . . . . . . . 12
Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) . . . 11-12
Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) . . . . . . . . 13
Reed v. State, 421 S.W.3d 24, 29-30 (Tex. App. Waco 2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Skillern v. State, 890 S.W.2d 849, 869 (Tex. App. Austin 1994, pet.ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) . . . . . . . . 13
Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999) . . . . . . . . . . 12
STATUTES
Texas Code of Criminal Procedure, Art. 36.14 . . . . . . . . . . . . . . . . . . . . . 12
Texas Penal Code, Sec. 6.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
c:\appeals\dains\brief for appellant iv STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived.
c:\appeals\dains\brief for appellant v TO THE HONORABLE COURT OF APPEALS:
COMES NOW JESSE RALPH DAINS, appellant, by and through his
appointed/retained attorney of record, ALLEN C. ISBELL, and files this Brief
in support of his prayer for reversal of his conviction.
Statement of the Nature of the Case
This is an appeal arising from a conviction for Aggravated Sexual
Assault in the 262nd District Court of Harris County, Texas, the Honorable
Denise Bradley, Judge Presiding. The jury found appellant guilty. The
judge/jury sentenced appellant to twenty-five (25) years imprisonment, in the
Texas Department of Criminal Justice, Institutional Division and assessed a
$10,000 fine. No Motion for New Trial was filed. Appellant gave written Notice
of Appeal on September 30, 2014.
Point of Error Number One
APPELLANT SUFFERED EGREGIOUS HARM BY THE TRIAL COURT’S
FAILURE TO DEFINE PROPERLY “INTENTIONALLY AND “KNOWINGLY”
AS APPLIED TO APPELLANT’S ALLEGED CONDUCT BECAUSE
APPELLANT’S DEFENSE AT TRIAL WAS THAT HE “BLACKED OUT,”
WHICH RAISED THE ISSUE OF WHETHER HE ACTED WITH THE
REQUIRED CULPABLE MENTAL STATE WITH REGARD TO HIS
c:\appeals\dains\brief for appellant 1 ALLEGED CONDUCT.
Statement of Facts Point of Error Number One
The Indictment charged that appellant committed the offense of
Aggravated Sexual Assault:
“The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, JESSE RALPH DAINS, hereafter styled the Defendant, heretofore, on or about MARCH 21, 2013, did then and there unlawfully, intentionally and knowingly cause the penetration of the mouth of KELLY LACKEY, hereinafter called the Complainant, by the sexual organ of the Defendant, without the consent of the Complainant, namely, the Defendant compelled the Complainant to submit and participate by the use of physical force and violence, and in the course of the same criminal episode, the Defendant used and exhibited a deadly weapon, namely a KNIFE” (C.R. I, 13).
The complaining witness, Kelly Lackey, began working as a bartender
at the B & H Bar in Tomball, Harris County, Texas, in January of 2013. The
small bar has a regular clientele from the community. It served beer and
wine, but allowed patrons to bring in their own liquor and to purchase ice,
Sprite or Coke. She had seen the appellant, Jesse Ralph Dains, in the bar
about five times between January and the date of the alleged offense. The
first time that he came in, appellant asked her to dinner but she declined
(R.R.3, 126-129). On the day of the alleged assault, she arrived at the bar at
c:\appeals\dains\brief for appellant 2 5 p.m. for the evening shift, which usually ended at 10 p.m. It was very busy
that evening. Therefore, she did not recall when appellant arrived. When she
did see him, he did not appear overly intoxicated. Sometime before 9 p.m.,
the electrical lines to the building were cut by some unknown person or
persons outside of the bar. When the lights went out, most people began to
leave. She, a man named Jesse Martin, and appellant were the last ones
inside the bar (R.R. 3, 131-132).
Jesse Martin was “a regular” who came in with his girlfriend, Sonia,
usually. Their custom was to have a drink with the complainant and wait
inside the bar while the complainant finished closing up. However, Sonia was
ill. So, Jesse Martin had a drink with her and appellant and then left before
Sonia had closed (R.R. 3, 133-134). After saying goodnight to Jesse Martin
at the outside door, she found appellant standing at the bar near where she
kept her cell phone. Immediately, appellant grabbed her and tried to kiss her.
She pushed him away. Appellant threw her to the ground, got on top of her,
held a knife to her side and told her that he wanted to fuck her. He said that
he knew that this was the only way it could happen. She started to scream for
help, but appellant pulled her up and began dragging her toward the woman’s
restroom. She began to fight appellant over the knife. She reached for her
c:\appeals\dains\brief for appellant 3 cell phone as they went by the bar, but it was missing (R.R. 3, 134-138).
Once they were inside the restroom, she began to wrestle with
appellant. Again, he pushed her to the floor. He held a knife to her throat and
said, “Welcome to your funeral.” Then, he demanded that she remove her
underwear. The complainant claimed that appellant forced her to perform oral
sex on him for about six hours. Appellant told her that he wanted to ejaculate
in her mouth as he cut her throat, but was unable to obtain an erection.
Appellant beat her head against the sink, the toilet bowl and the wall any time
she tried to fight back. When she told appellant that she was going to be sick,
he held her head over the toilet. In doing so, he took the knife away from her
throat. She grabbed the lid from the toilet tank and hit appellant in the head
with it. Although injured, appellant said that she was clever but not clever
enough. She was bleeding profusely, but appellant blocked the doorway and
told her she could just bleed out. However, he realized that some of the blood
in the room was his own, he ordered her to clean up the bathroom. She sat
on the floor, holding a lighter in one hand so she could see to mop with the
other hand. Appellant stood behind her the entire time holding a knife to her
throat. When she had finished, appellant gathered the towels and told her
that he was taking her to his hotel. He forced her at knife point to drive her
c:\appeals\dains\brief for appellant 4 truck to the hotel next door (R.R. 3, 140-148).
Appellant kept the knife in her side and put his arm around her as they
walked through the lobby to his room to shield her from the view of the desk
clerk (R.R. 3, 149). The desk clerk, Satisbhai Patel, saw appellant come into
the hotel with a female at about 4:30 a.m. (R.R. 3, 18-20). When they reached
his hotel room, appellant ordered her to take a shower to wash off all of the
blood. After she had showered, appellant ordered her to lie on the bed where
he performed oral sex on her without her consent. When she asked if she
could just rest a bit, appellant cleaned his knife and laid down beside her, and
appeared to fall asleep. However, when she sat up, he grabbed her by the
back of the head. She said that she just needed to use the bathroom. She
stayed in the bathroom until she was sure that appellant was asleep or
passed out. Then, she wrapped herself in a towel and ran to the lobby where
she asked the clerk to call 9-1-1 (R.R. 3, 21-22, 149-151). The complainant
testified that appellant did not slur his words or appear to be overly intoxicated
during the assault; that he was eerily calm, and calculating throughout the
assault (R.R. 3, 142, 145, 149). His demeanor was so chilling that she got the
impression he may have done this before (R.R. 3, 162-163).
c:\appeals\dains\brief for appellant 5 Sergeant Jason Welch of the Tomball Police Department responded to
the 9-1-1 call. He spoke with the complainant before an ambulance was
called to take her to the hospital (R.R. 3, 27-30). Lori Cummings, the
emergency and forensic nurse who examined the complaint and prepared a
rape kit, described the numerous cuts, bruises and abrasions she observed
(R.R. 4, 7-18). Sergeant Welch found appellant in bed, and informed him of
the accusations the complainant had made against him. Appellant said that
he did not know what happened. Appellant smelled of alcohol and he was
taken to the hospital for treatment of a head wound (R.R. 3, 31-33). Detective
Albert Chambers secured the hotel and bar as crime scenes and took
possession of the complainant’s truck. He obtained search warrants for the
crime scenes and vehicle, and a warrant for buccal swabs from appellant for
DNA comparison (R.R. 3, 48-54). Officer Jason Smith collected the swabs
from appellant at the jail (R.R. 3, 64).
The complainant’s cell phone was recovered from appellant’s hotel room
(R.R. 3, 159). Officers Jennifer Torres, Janet Barcelona, and Angela Fagg
collected evidence from the hotel, bar and vehicle (R.R. 3, 68-89; 96-106;
116-119). DNA analyst Zury Phillips analyzed the swabs submitted in this
case. Swabs from the rape kit contained a mixture of DNA from two sources.
c:\appeals\dains\brief for appellant 6 Neither the complainant nor appellant could be excluded (R.R. 4, 25-26). The
same was true for samples taken from bloodstains on a shirt (R.R. 4, 28-29),
a belt (R.R. 4, 32), and the handle of a knife found in appellant’s hotel room
(R.R. 4, 33-34). Appellant could not be excluded as a possible major
contributor for the blood found on the toilet bowl lid and door handle to the
bathroom in the bar (R.R. 4, 34-37). Appellant, but not the complainant, was
excluded as a possible source for the blood found on the pair of jeans (R.R.
4, 31), and on the blade of the knife (R.R. 4, 33-34) recovered from
appellant’s hotel room.
Appellant testified on his own behalf at the guilt-innocence phase of trial.
He stayed at the same hotel in Tomball when he came to Texas on business
(R.R. 4, 56). He considered himself to be a “functioning alcoholic.” (R.R. 4,
54-55, 69). On the morning of March 20, 2013, he flew into Houston from
Newark, New Jersery, to set up displays at the Home and Garden Show
(R.R. 4, 51, 62). He drank Crown Royal from his flask while he was in the cab
going to the airport. He had a couple of drinks while he waited for his flight.
He drank on the plane, had a couple of shots at the Houston airport, and
drank from his flask in the cab on his way to the hotel. After arriving at the
hotel he walked to a nearby liquor store and purchased a half-gallon bottle of
c:\appeals\dains\brief for appellant 7 Crown Royal (R.R. 4, 57-58). He always carried a knife as a tool for cutting
open boxes and tearing down displays at trade shows. He had put his knife
in his pocket out of habit when he unpacked his things at the hotel (R.R. 4, 60,
62, 71).
He went to the B & H Bar about 5 p.m. He remembered that it was
unusually crowded that night, that the lights went out, that no one could find
out why, and that he and the complaint and another man had one or more
drinks after everyone else had left. But, he could remember nothing after that.
He blacked out and did not recall anything else until he woke up in his bed to
find police officers pointing guns at him (R.R. 4, 62-65, 72-74 ). He testified
that he never intended to assault the complainant, and that he had never in
his life intentionally wanted to hurt or do anybody any harm (R.R. 4, 59, 66 -
67). He had never blacked out from drinking too much (R.R. 4, 74), and he
had no explanation for anything that the complainant said that he had done
(R.R. 4, 66).
In his opening statement and in his summation at the close of the trial,
appellant’s counsel expressed the hope of obtaining a jury charge on the
lesser included offense of sexual assault based on whether a deadly weapon
was used or exhibited. Then, he planned to argue that appellant was guilty
c:\appeals\dains\brief for appellant 8 only of the lesser included offense (R.R. 4, 15-16, 86). He did not obtain the
anticipated lesser-included charge because the use of a deadly weapon was
not a contested issue (R.R. 4, 84).
Appellant testified that he “blacked out” after consuming a large amount
of alcohol, and that he did not remember any of the conduct alleged in the
indictment (R.R. 4, 64-65, 73-75). This testimony raised the only contested
issue at trial, that is, appellant’s lack of mens rea with regard to the alleged
conduct.
The trial court’s jury instructions defining intentionally and knowingly
apply only to a “result-of-conduct” type of offense:
“A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Now, if you find from the evidence beyond a reasonable doubt that on or about the 21st day of March, 2013, in Harris County, Texas, the defendant, Jesse Ralph Dains, did then and there unlawfully, intentionally or knowingly cause the penetration of the mouth of Kelly Lackey by the sexual organ of the defendant, without the consent of Kelly Lackey, namely, the defendant compelled Kelly Lackey to submit or participate by the use of physical force or violence, and in the course of the same criminal episode the defendant used or exhibited a deadly weapon, namely a knife, then you will find the defendant guilty of
c:\appeals\dains\brief for appellant 9 aggravated sexual assault as charged in the indictment” (C.R.I, 71-72).
Appellant’s counsel did not object to the jury charge because it gave a
definition of intentionally and knowingly which did not apply to a “nature-of-
conduct” type offense. He did not object to the jury charge because it failed
to define intentionally or knowingly as applied to a “nature-of-conduct” type
offense.
Summary of the Argument Point of Error Number One
Appellant’s testimony raised the defense that he did not intentionally or
knowingly do the acts alleged in the indictment because he drank so much
alcohol that he blacked out and that he had no memory of what he may have
done. Appellant’s counsel appears not to have recognized that this testimony
raised a defense to the offense charged because it negates the mens rea
necessary for a conviction. Appellant’s counsel appears not to have realized
that aggravated sexual assault is a “nature of the conduct” type of offense.
Appellant’s counsel did not object to the trial court’s jury instructions defining
“intentionally” and “knowingly” on the grounds that those definitions apply only
to a “result of the conduct” type of offense. The jury charge does not contain
an appropriate definition of intentionally and knowingly as the apply to a
c:\appeals\dains\brief for appellant 10 “nature of the conduct” type of offense. The jury instruction misled the jury’s
deliberations regarding the mens rea of the offense. Appellant suffered
egregious harm by the erroneous jury instruction.
Argument and Authorities Point of Error Number One
Texas Penal Code, Sec. 6.03, Definitions of Culpable Mental States,
provides, in pertinent part, that;
(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or the result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Appellant’s testimony raised the defense that he did not have a conscious
desire to engage in the alleged conduct, and that he was not aware of the
nature of his conduct. He testified that he “blacked out” after consuming a
large amount of alcohol, and that he did not remember any of the conduct
alleged in the indictment (R.R. 4, 64-65, 73-75). Persons who are
unconscious or semi-conscious at the time of the alleged act may argue that
they lacked the mens rea necessary for the criminal liability. Mendenhall v.
c:\appeals\dains\brief for appellant 11 State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002).
Trial counsel did not argue this defense during his summation to the jury
at the guilt-innocence stage of trial. Possibly, trial counsel was still fixated on
wanting the evidence to raise the lesser-included offense of “sexual assault,”
that he failed to appreciate that appellant’s testimony raised a viable defense,
as the Court of Criminal Appeals pointed out in Mendenhall v. State. The only
contested issue at trial was the issue of appellant’s mens rea with regard to
the alleged conduct.
The Texas Court of Criminal Appeals has determined that the offense
of aggravated sexual assault is a “nature-of-conduct” type of offense. See:
Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999); Huffman v. State,
267 S.W.3d 902, 906 (Tex. Crim. App. 2008); Gonzales v. State, 304 S.W.3d
838, 848 (Tex. Crim. App. 2010); Aekins v. State, 447 S.W.3d 270, 286-287
(Tex. Crim. App. 2014).
Texas Code of Criminal Procedure, Art. 36.14 requires that the trial
court provide to the jury “a written charge distinctly setting forth the law
applicable to the case.” The jury charge should contain only that portion of
the statutory definition corresponding to the culpable mental state proscribed
by the offense. Garza v. State, 794 S.W.2d 497, 500 (Tex. App. Corpus
c:\appeals\dains\brief for appellant 12 Christi 1990, pet. ref’d). The type of offense charged will dictate which
portions of the culpable mental state definition should be submitted. Skillern
v. State, 890 S.W.2d 849, 869 (Tex. App. Austin 1994, pet. ref’d). A trial court
errs in failing to limit the definitions to the conduct elements or elements to
which they apply. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App.
1995). In this case the trial court included in the jury charge the statutory
definitions of intentionally and knowingly as applied to a “result-of-conduct”
type offense, and wholly failed to include instructions relating to a “nature-of-
conduct” type offense.
Trial counsel did not object to the jury charge, neither did he request a
correct definition for “intentionally” and “knowingly” as applied to a “nature of
conduct” offense. Therefore, appellant must show that he suffered egregious
harm by the erroneous jury instruction. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim .App. 1985). Jury-charge error is egregiously harmful if it: (1)
affects the very basis of the case, (2) deprives the defendant of a valuable
right, or (3) vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d
706, 719 (Tex. Crim. App. 2007).
In this case, appellant’s testimony made the culpable mental state a
contested issue. The court’s instructions did not give the jury a vehicle by
c:\appeals\dains\brief for appellant 13 which it could determine correctly the issue of intent, as applied to appellant’s
conduct. Because intent was the only contested issue, and appellant’s sole
defense, he suffered egregious harm by the erroneous definition of the
intentional and knowing state of mind. Appellant suffered egregious harm by
the failure to define correctly those terms as they applied to the instant case.
This case is distinguishable from any case in which appellant’s defense
was something other than that he lacked the requisite mens rea to commit the
charged offense. Compare: Reed v. State, 421 S.W.3d 24, 29-30 (Tex. App.
Waco 2013, pet. ref’d) and cases cited therein holding that where no defense
is presented which would directly affect an assessment of mental culpability
for the alleged offense, there can be no egregious harm.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, appellant prays that the
judgment of conviction be reversed and the cause remanded for new trial.
Respectfully submitted,
/s/ Allen C. Isbell ALLEN C. ISBELL 202 Travis, Suite 208 Houston, Texas 77002 713/236-1000 Fax: 713/236-1809 STATE BAR NO. 10431500 COUNSEL ON APPEAL
c:\appeals\dains\brief for appellant 14 Certificate of Service
I hereby certify that on this 13th day of February, 2015, a true and correct
copy of the foregoing Brief for Appellant has been sent to the District
Attorney's Office, Appellate Division, and to Mr. Jesse Ralph Dains, appellant.
/s/ Allen C. Isbell ALLEN C. ISBELL
Certificate of Compliance
The undersigned attorney on appeal certifies this brief is computer
generated and consists of 3,816 words. Counsel is relying on the word count
provided by the Word Perfect computer software used to prepare the brief.
c:\appeals\dains\brief for appellant 15