Manuel Juarez-Mendez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 18, 2022
• Docket: 07-21-00073-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00073-CR

MANUEL JUAREZ-MENDEZ, APPELLANT

V.

THE STATE OF TEXAS

On Appeal from the 137th District Court Lubbock County, Texas, Trial Court No. 2020-421,080, Honorable Trey McClendon III, Presiding

April 18, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Manuel Juarez-Mendez appeals his conviction for aggravated sexual assault. His

victim, VR, was the young mother of his children. Apparently unwed to him, VR decided

to end the relationship. That resulted in appellant forcing his way into her house, directing

VR into her bedroom, locking the bedroom door behind them, physically impeding VR’s

exit, directing VR to pack in preparation for leaving with him, forcing her onto a bed after

she refused to leave, sitting atop her as she fought him, forcing a blanket into her mouth, regaining control of her after she momentarily escaped his grasp, twice forcing a pillow

over her face, awakening her after rendering her unconscious, removing her pants, and

ultimately penetrating her vagina with his penis without her consent.

Five issues pend for our review. They involve the sufficiency of the evidence

supporting conviction, charge error, and the omission of a lesser-included offense. We

affirm.

Issue One: Sufficiency of the Evidence

Through his first point, appellant alleges the evidence was insufficient to establish

that he placed her in fear of serious bodily injury or that he had the requisite mens rea

when placing her in such fear. We overrule the issue.

The applicable standard of review is that described in Martin v. State, 635 S.W.3d

672, 679 (Tex. Crim. App. 2021), and Hammack v. State, 622 S.W.3d 910, 914–15 (Tex.

Crim. App. 2021). Under it, we compare the evidence of record to the elements of the

offense as that offense is described in a hypothetically correct jury charge. Hammack,

622 S.W.3d at 914. The hypothetically correct charge here would require proof, beyond

reasonable doubt, that while committing sexual assault, appellant “by acts or words

place[d] the victim in fear that . . . serious bodily injury [would] be imminently inflicted on

any person.” See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii); Salazar v. State, 562

S.W.3d 61, 66 (Tex. App.—Corpus Christi 2018, no pet.).

In deciding if the State proved that aggravating element, we must remember the

victim need not expressly testify she was afraid or scared, or otherwise feared for her life.

Blacklock v. State, 611 S.W.3d 162, 168 (Tex. App.—Houston [14th Dist.] 2020, pet.

ref’d); Lourenco v. State, No. 05-13-00192-CR, 2015 Tex. App. LEXIS 750, at *22 (Tex.

2 App.—Dallas Jan. 28, 2015, no pet.) (mem. op., not designated for publication). Indeed,

if the objective facts of the assault are of the ilk that naturally would cause the victim to

fear for her life, then one can reasonably infer she had the requisite level of fear, without

her expressed admission of fear. Id. And, examples of objective facts which naturally

would cause one to fear death or serious bodily injury include the assailant’s employment

of a deadly weapon, utterance of explicit threats, or use of excessive force or violence at

the time. Id.

To reiterate, we find evidence that appellant forced his way into the house, directed

VR to a bedroom, locked the door, and impeded her exit. Then, VR found herself being

forced onto the bed with appellant straddling her torso. In response to her screams,

appellant told her that no one would hear them. They ultimately resulted in appellant

shoving a blanket into her mouth, which act, according to VR, impeded her breathing. VR

having succeeded in removing the blanket, appellant then twice attempted to smother her

with a pillow. The last effort resulted in VR losing consciousness. Undeterred, appellant

revived his victim only to rape her.

Blankets and pillows may not be items one normally considers deadly weapons.

Nevertheless, a reasonable juror can reasonably infer that when forcibly placed over a

person’s mouth or nose in a way that impedes breathing, their use or intended use was

capable of causing death or serious bodily injury; he or she can reasonably infer that the

items became deadly weapons. See TEX. PENAL CODE ANN. § 1.07(17)(B) (defining

“deadly weapon” as including “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury”); see also Soto v. State, 156 S.W.3d

131, 137 (Tex. App.—Fort Worth 2005, pet. ref’d) (concluding that a “pillow used in the

3 case now before this court was, in the manner of its use and intended use, capable of

causing death and serious bodily injury and that the pillow, therefore, was a deadly

weapon”). So, appellant’s use of the blanket and pillow, as he did, naturally would cause

a victim like VR to fear for her life, especially after having been subjected to appellant’s

other physically violent acts described earlier. To that we add VR’s own words. She

actually testified that she was “scared” appellant would “hurt me.” Considering all of this

evidence in a light favorable to the verdict, we conclude that the record contains more

than ample proof allowing a reasonable juror to infer, beyond reasonable doubt, that

appellant’s “acts or words place[d] the victim in fear that . . . serious bodily injury [would]

be imminently inflicted” upon her.

That appellant suggests other evidence could be interpreted in a way that indicates

VR merely worried about the safety of her children, as opposed to her physical well-being,

matters not. Making such an argument is merely an exercise in the misapplication of the

standard of review, an exercise that many undertake on appeal. The jury, not the

reviewing court, is the sole judge of the credibility of witnesses and the weight afforded

their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Such

is a fundamental principle often misunderstood, if not ignored, by appellants. Due to that

principle, the very evidence that appellant deems favorable to him is the very evidence

the jury is free to discredit.

Evidence of the way appellant used the blanket and pillows also provides sufficient

evidence to negate another of appellant’s arguments. Again, he asserts that the State

failed to prove he had the requisite mens rea when engaging in the conduct causing VR

to fear for her well-being. Assuming arguendo that the State was required to prove he

4 intended to place VR in fear of imminent serious bodily injury, his (1) telling her he was

going to have sex with her, (2) forcing himself atop her while restraining her efforts to

escape, (3) telling her that her screams were futile, (4) shoving a blanket into her mouth,

(5) twice attempting to suffocate her with a pillow, and (6) his reviving her to experience

the ensuing rape serve the purpose.

Issue Two: Charge Error–Instruction that Fear Must be “Reasonable”

Appellant next urges “the trial court should have stepped in to make sure the cause

of justice was advanced and not impeded by requiring a reasonable fear for conviction of

the aggravated offense.” In other words, he posits that the trial court should have

instructed the jury that VR’s fear of serious bodily injury had to be reasonable. We

overrule the issue.

The words of § 22.021(a)(2)(A) say nothing about the victim’s fear being

reasonable. It merely iterates that “by acts or words [the accused] places the victim in

fear that . . . death, serious bodily injury, or kidnapping will be imminently inflicted on any

person.” TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii). Consequently, the trial court’s

instruction tracked the statute by omitting reference to the victim’s fear being reasonable,

and an instruction that tracks the penal statute under which one is prosecuted is not

erroneous. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Smith v.

State, No. 04-13-00711-CR, 2014 Tex. App. LEXIS 13705, at *31 (Tex. App.—San

Antonio Dec. 23, 2014, no pet.) (mem. op., not designated for publication); Whitney v.

State, 396 S.W.3d 696, 703 (Tex. App.—Fort Worth 2013, pet. ref’d).

5 Issue Three: Charge Error–Incomplete Definition

Through issue three, appellant complains that the trial court erred by omitting from

its charge a complete definition of “knowingly.” According to appellant, the “‘fear’ element

[incorporated into § 22.021(a)(2)(A)(ii)] is still a result of conduct” and “[r]esult of conduct

culpable mental state is not defined anywhere in the jury charge.” Its omission allegedly

“reduced the state’s burden of proof of the aggravating circumstance and is egregious

error in light of the greater punishment that flows from an aggravated finding by the jury.”

We overrule the issue.

Admittedly, the jury charge at bar contained only one of the two definitions of

“knowingly,” that is, the one applicable to “nature of conduct” offenses. See TEX. PENAL

CODE ANN. § 6.03(b) (stating that a “person acts knowingly, or with knowledge, with

respect to the nature of his conduct . . . when he is aware of the nature of his conduct or

that the circumstances exist”). Nevertheless, aggravated sexual assault is a conduct-

oriented offense. Boyd v. State, No. 02-20-00090-CR, 2021 Tex. App. LEXIS 3966, at *6

(Tex. App.—Fort Worth May 20, 2021, no pet.) (mem. op., not designated for publication);

In re T.V.T., No. 14-18-00807-CV, 2019 Tex. App. LEXIS 11032, at *7 (Tex. App.—

Houston [14th Dist.] Dec. 19, 2019, no pet.) (mem. op., not designated for publication);

accord Young v. State, 341 S.W.3d 417, 423 n.20 (Tex. Crim. App. 2011) (wherein the

court cited its opinion in Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999), for the

proposition that “‘[aggravated sexual assault] is a conduct-oriented offense in which the

legislature criminalized very specific conduct of several different types’”). Being such, the

trial court did not err in limiting the definition of “knowingly” as it did.

6 Issue Four: Charge Error–Unanimity Instruction

Next, appellant argues that the trial court erred by omitting an instruction requiring

unanimity on the aggravating factor, that is, unanimity as to whether his acts placed VR

in fear of imminent serious bodily injury. We overrule the issue.

The purported risk of being less than unanimous allegedly arose from what

appellant deemed to be confusing verbiage in the charge. That verbiage consisted of the

court instructing the jurors, under the section entitled “Accusation” that “the defendant did

then and there by acts or words threaten to cause, or place, [VR] in fear that serious

bodily injury would be imminently inflicted on [VR].” (Emphasis added). Like wording

also appeared in the section labelled “Application of Law to Facts.” There, the jurors were

told they could find appellant guilty if he penetrated VR’s sexual organ without her consent

and “did then and there by acts or words threaten to cause, or place [VR] in fear that

serious bodily injury would be imminently inflicted on [VR].” (Emphasis added). Appellant

questions to what the trial court referred when saying “threatened to cause”: Was it

alluding to a threat to cause serious bodily injury, a threat to cause VR to fear serious

bodily injury, or a threat to cause something else? Whatever it was, he continues, the

jurors should have been told to unanimously agree that his acts or words either (1)

threatened to cause that something or (2) placed VR in fear of serious bodily injury.

Admittedly, those aspects of the charge are a bit confusing. Yet, appellant did not

object to them at trial. Additionally, the trial court had earlier said, under the heading

“Law,” that “[a] person commits an offense of Aggravated Sexual Assault if the person

intentionally or knowingly causes the penetration of the anus or sexual organ of another

person by any means, without that person’s consent and by acts or words places the

7 victim in fear of serious bodily injury.” (Emphasis added). Missing from that passage

is the phrase “threaten to cause,” which, consequently, had the effect of telling the jury of

only one aggravating circumstance. We further note the presence of boilerplate unanimity

instruction in the charge. Through it, the jurors were told that (1) “in order to return a

verdict of guilty, you must all agree the defendant committed one of the specific acts

contained in this jury charge”; and (2) “[y]ou need not all agree that the defendant

committed all of the acts, but you must all agree that the defendant committed the same

act.”

Next, we see that the State’s closing argument emphasized the act of placing VR

in fear of serious bodily injury, as opposed to some other aggravating factor.1 And, as

mentioned earlier, the record contains ample evidence from which a factfinder could

reasonably infer that appellant’s words and actions placed VR in fear of imminent serious

bodily injury.

The foregoing circumstances lead us to conclude that even if the confusing nature

of the charge evinced error, appellant suffered no egregious harm from it. It did not affect

the very basis of the prosecution, deprive him of a valuable right, or vitally affect a

defensive theory. See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (stating

that a “conviction should be reversed for unobjected-to jury charge error only if it resulted

in ‘egregious harm’” and “[h]arm is egregious if it deprives the appellant of a ‘fair and

impartial trial’”); Bright v. State, No. 07-15-00118-CR, 2016 Tex. App. LEXIS 6885, at *14

(Tex. App.—Amarillo June 29, 2016, pet. ref’d) (mem. op., not designated for publication)

1 The prosecutor argued: “[a]nd then the last one, placed her in fear of imminent bodily injury,

serious bodily injury. I don’t have to prove, it’s not the burden of the State to prove that she actually died, or that she actually lost major organ function, only that he placed her in fear of those things.” (Emphasis added).

8 (stating the same and describing egregious harm as harm that “affects the very basis of

the case, deprives the appellant of a valuable right, or vitally affects a defensive theory”).

Issue Five: Charge Error–Lesser-Included Offense

Though his last issue, appellant argues that the trial court erred in refusing to give

a lesser-included instruction on misdemeanor or simple assault, despite trial counsel’s

request. We overrule the issue.

The parties agree that the relevant standard in reviewing preserved charge error

relating to a lesser-included offense implicates a two-step analysis. George v. State, 634

S.W.3d 929, 937 (Tex. Crim. App. 2021). First, we determine, as a question of law,

whether the proof necessary to establish the charged offense also includes the lesser

offense. Simms v. State, 629 S.W.3d 218, 222 (Tex. Crim. App. 2021). If it does, then

we assess whether the evidence admitted at trial would permit a jury to rationally find that

if the defendant is guilty, he is guilty only of the lesser offense. Id. Our analysis ends at

the first step.

Appellant cited us to no authority holding that misdemeanor assault is a lesser-

included offense of aggravated sexual assault. Nor did he provide us with substantive

analysis illustrating why he thought the proof necessary to establish the charged offense

also included proof of the lesser. Instead, he merely quoted § 22.01(a)(1)–(3) of the Penal

Code (i.e., the simple assault statute), quoted part of the indictment, and opined that “it

seems obvious that misdemeanor assault is a lesser-included offense in this case.”

Moreover, the foregoing statute describes three distinct forms of simple assault: bodily-

injury assault, assault by threat, and offensive-contact assault. See TEX. PENAL CODE

ANN. § 22.01(a)(1)–(3). We are left to guess at which of the three appellant believes the

9 trial court should have submitted. Yet, our appellate duties do not include the obligation

to pick a card for him. It is his obligation to substantively explain his position to us, that

is, pick his own card and substantively explain why its choice entitled him to the relief

sought. Furthermore, his omission is of import because authority holds that not every

form of simple assault is a lesser-included offense of aggravated sexual assault. See,

e.g., Mathis v. State, 443 S.W.3d 391, 396–98 (Tex. App.—Austin 2014, no pet.) (finding

that bodily-injury assault is not a lesser-included offense of sexual assault because bodily

injury is not an element of sexual assault and assault causing bodily injury requires proof

of an additional element); Cisneros v. State, No. 05-12-01532-CR, 2014 Tex. App. LEXIS

6854, at *14–15 (Tex. App.—Dallas June 25, 2014, no pet.) (mem. op., not designated

for publication) (finding bodily-injury assault is not a lesser-included offense of aggravated

sexual assault because aggravated sexual assault does not require proof of bodily injury

and evidence of penetration is not evidence of bodily injury); Denton v. State, No. 02-05-

00044-CR, 2006 Tex. App. LEXIS 6662, at *13–14 (Tex. App.—Fort Worth July 27, 2006,

pet. ref’d) (mem. op.) (concluding the same). So, we conclude that appellant’s failure to

provide us substantive analysis in the way described here relieves us from addressing

the issue. See Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012) (holding that

because the appellant failed to provide substantive analysis or authority supporting his

claim, his inadequate briefing relieved the court of addressing the claim).

One other ground also warrants rejection of his complaint. It concerns the absence

of harm. The trial court submitted to the jury the lesser offense of sexual assault. The

circumstance differentiating that offense from the accusation of aggravated sexual assault

was the absence of the aggravating factor. In other words, the trial court afforded the jury

10 opportunity to convict appellant of a lesser crime if it did not believe he placed VR in fear

of serious bodily injury. Indeed, it is the supposed lack of proof of that particular

aggravating factor that warranted submission of misdemeanor assault, according to

appellant. Yet, the jury nevertheless found him guilty of the greater offense. It having

eschewed the opportunity to convict appellant of the intervening lesser-included offense

of sexual assault, we cannot say appellant suffered any harm from the trial court’s

decision to withhold an instruction on simple assault, assuming, of course, such was error.

Partida v. State, 279 S.W.3d 801, 804–805 (Tex. App.—Amarillo 2007, pet. ref’d)

(concluding that the jury’s failure to find appellant guilty of an intervening lesser-included

offense which was submitted rendered harmless the failure to instruct on an even lesser

offense).

We affirm the trial court’s judgment convicting appellant of aggravated sexual

assault.

Brian Quinn Chief Justice

Do not publish.