Johnson v. State
Opinions
OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
Appellant was charged by indictment with the offense of aggravated sexual assault, V.T.C.A. Penal Code 22.021. Upon a plea of not guilty, a jury found appellant guilty as charged in the indictment. The indictment contained the language "... and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, namely, a firearm ... ”. Submitted to the jury at the guilt/innocence stage of trial was a special issue inquiring into whether appellant used or exhibited a deadly weapon during the commission of the offense. The jury found that he did not. The trial court assessed punishment, enhanced by a prior conviction, at confinement in the Texas Department of Corrections for twenty-five years. The 14th Court of Appeals reversed the judgment of the trial court on the ground that the jury’s conflicting answers raised the question of whether the jury believed the evidence established that appellant used a deadly weapon, and they remanded the case for a new trial.
Upon his appeal to the Court of Appeals, appellant claimed in his first point of error [422]*422that the evidence was insufficient to support the verdict on the aggravating element of the offense. The Court of Appeals stated in a published opinion, 738 S.W.2d 307 (Tex.App.-Houston 1987), that while the jury’s verdict of guilty as charged in the indictment and the jury’s negative response to the deadly weapon special issue were in obvious conflict, the conflict did not render the evidence insufficient to support the verdict. The court went on to say, however, that the conflicting answers did raise the question of whether the jury believed the evidence established that appellant used a deadly weapon. Because this Court does not find an inherent conflict between the jury’s verdict and their special issue response, we reverse the judgment of the Court of Appeals and affirm the conviction of the trial court.
The relevant facts of the case are as follows. The complainant, K.P., was outside the Harris County jail after attempting to visit someone in that jail. The appellant approached her in his taxicab, allegedly brandished a gun, and ordered her to get into the car. He then drove away with complainant, gun in hand, and made stops at several apartment complexes. Complainant did not see the gun again once the car was parked at the last apartment complex, which is where the forced sexual incident originated. Complainant did not see the gun during the sexual attack itself. Complainant eventually escaped from the cab at a red light into an ambulance in the next traffic lane. Appellant was arrested after an investigation, was taken to trial, and was convicted by a jury of aggravated sexual assault as charged in the indictment. The charge submitted to the jury tracked the language of the indictment, which in turn tracked the language of the aggravated sexual assault statute. (See V.T.C.A. Penal Code 22.021). In pertinent part, the charge stated:
“...Now if you find from the evidence beyond a reasonable doubt that on or about the 16th day of November, 1985, in Harris County, Texas, the defendant, Charles Johnson, did then and there unlawfully, intentionally or knowingly by the use of physical force and violence or by threatening the present use of physical force and violence against K.P., not the spouse of the defendant, cause the penetration of the female sexual organ of K.P. by placing his sexual organ in the female sexual organ of K.P. and in the course of the same criminal episode the defendant used and exhibited a deadly weapon, namely, a firearm, then you will find the defendant guilty of aggravated sexual assault as charged in the indictment.” (Emphasis supplied).
After finding the appellant guilty as charged, and still at the guilt/innocence phase of the trial, the jury considered the following special issue:
“.. .Do you, the jury, find the defendant used or exhibited a deadly weapon, namely, a firearm, in the commission of the offense for which he has been convicted? ...” (Emphasis supplied).
The jury answered “We do not”.1
The State comes to this Court on petition for discretionary review. In its first [423]*423ground for review, the State contends the Court of Appeals failed to employ a liberal construction of the verdict, and cites Ainsworth v. State, 517 S.W.2d 274, 275 (Tex.Cr.App.1975), in which this court countenanced a liberal construction of jury verdicts rather than strict construction. The State argues that a liberal construction of the verdict would show that the verdict and the response to the special issue are not necessarily in conflict, and that it is entirely reasonable and logical for the jury to have found the appellant guilty of aggravated sexual assault, and yet answer “we do not” to the deadly weapon finding special issue.
It is rational to find that the jury differentiated as to the meaning and substance between these two submissions simply because they had already determined that appellant had exhibited or used a deadly weapon during the “criminal episode”, and was guilty of aggravated sexual assault, and then immediately thereafter they were asked if the appellant used or exhibited a deadly weapon during the “commission of the offense”.
It is readily apparent that a juror could rationally interpret this to mean that a further disparate determination on the deadly weapon issue was necessary. It is reasonable to find that the jury correctly determined the appellant had exhibited a deadly weapon during the course of the criminal conduct in question, i.e. during the “criminal episode”, but that he did not exhibit the deadly weapon during the actual physical sexual attack itself, i.e. during the “commission of the offense”. Under this reasonable explanation, the jury’s verdict and their answer to the special issue are not in conflict. As stated in Ainsworth, supra:
“Verdicts should receive a liberal rather than a strict construction, and if the finding of the jury can be reasonably ascertained, from whatever source, the verdict should be held valid.”
Id. at page 277. The finding of the jury has been reasonably ascertained, and the verdict is thus valid. The State’s first ground for review is sustained.
In their second ground for review, the State complains that the Court of Appeals erred in failing to disregard the surplusage which gave rise to the potential inconsistency. Having found the Court of Appeals was in error in the resolution of the State’s first ground for review, we need not reach this ground.
Accordingly, the judgment of the Court of Appeals is reversed and the trial court’s judgment of conviction is affirmed.2
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777 S.W.2d 421 (Johnson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.