Walters v. State

777 S.W.2d 734, 1989 Tex. App. LEXIS 2681, 1989 WL 126332
CourtCourt of Appeals of Texas
DecidedAugust 30, 1989
DocketNo. 09-88-255 CR
StatusPublished
Cited by5 cases

This text of 777 S.W.2d 734 (Walters v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walters v. State, 777 S.W.2d 734, 1989 Tex. App. LEXIS 2681, 1989 WL 126332 (Tex. Ct. App. 1989).

Opinion

OPINION

BURGESS, Justice.

A jury found appellant guilty of aggravated sexual assault and assessed his punishment at sixty years in the Texas Department of Corrections. He now urges four points of error.

Point of error number one alleges the indictment is fundamentally defective. Point of error number two alleges appellant was convicted of an offense not alleged in the indictment. Since these two points are interrelated, we will consider them together. The indictment returned against appellant contained two counts. The State abandoned the second count and proceeded to trial on the first, which stated in pertinent part:

“HUEY PEEVES WALTERS ... did then and there sexually assault F_ M_ G_, a person not the spouse of the Defendant ... by intentionally and knowingly causing the penetration of the vagina of the Complainant by inserting his penis, without the consent of the Complainant, and the Defendant compelled the Complainant to submit to such sexual assault by the use of physical force and violence and by threatening Complainant with the use of force and violence against Complainant; and, by acts and words the Defendant placed the Complainant in fear that death and serious bodily would be imminently inflicted on the Complainant....”

The court then gave the following definition in its charge:

“AGGRAVATED SEXUAL ASSAULT:

“A person commits an offense if the person commits sexual assault and:
“(1) by acts or words the person places the victim in fear that death will be imminently inflicted on any person, or “(2) by acts or words occurring in the presence of the victim, the person threatens to cause death of any person.”

This was followed by the application paragraph:

“Now, if you believe from the evidence beyond a reasonable doubt that in Jefferson County Texas, on or about July 24, 1985, the defendant HUEY PEEVES WALTERS, did then and there sexually assault F_M_G_, a person not the spouse of the Defendant and hereafter styled the Complainant, by intentionally or knowingly causing the penetration of the vagina of the Complainant by inserting his penis, without the consent of the Complainant, and the Defendant compelled the Complainant to submit to such sexual assault by the use of physical force and violence and by threatening Complainant with the use of force and violence against Complainant; and, by acts and words the Defendant placed the Complainant in fear that death would be imminently inflicted on the Complainant, you shall find the defendant guilty of the offense of aggravated sexual assault.”

Appellant argues that when the word “injury” was not present in the concluding phrase “death and serious bodily [sic] would be imminently inflicted,” this did not allege the offense of aggravated sexual assault, but only sexual assault. We disagree. TEX.PENAL CODE ANN. sec. 22.-021(a)(2)(A)(ii) (Vernon 1989) provides that a sexual assault becomes aggravated if the actor places the victim in fear that death, serious bodily injury or kidnapping will be imminently inflicted upon anyone. These are three separate ways or means by which a sexual assault becomes aggravated. The indictment clearly alleges one of those [736]*736ways. Furthermore, the court only submitted the means alleged in the indictment. If there are different ways to commit an offense, they may be charged in the conjunctive in one count, and a conviction may be had on the proof of any one of the allegations. Vasquez v. State, 665 S.W.2d 484 (Tex.Crim.App.1984); Bivins v. State, 706 S.W.2d 165 (Tex.App.—Beaumont 1986, pet. ref’d). We find no error and overrule both points.

The next point of error complains the trial court erred in failing to grant a mistrial based upon the nonresponsive outbursts by the victim. Appellant points to the following:

“Q What happened next?
“A (Pause) He told me to sit on the back of the car. I was crying and screaming. And he says, you are the most goddam stubborn bitch I have ever seen.
“Mr. Walters, I guess I am or I wouldn't be here today. (Witness sobbing)
“[DEFENSE COUNSEL]: Your Honor, I am going to object as non-responsive questioning and request that be stricken from the record and the jury be instructed to disregard the non-responsive comment.
“THE COURT: Sustain the objection.
“The jury will disregard the last comment by this witness.
“[DEFENSE COUNSEL]: Move for a mistrial at this time based upon her outburst, your Honor.
“THE COURT: Mistrial denied.
“Keep her on track.”

The general rule is that a proper instruction can cure an improper response except in extreme cases. Barney v. State, 698 S.W.2d 114, 125 (Tex.Crim.App.1985). In determining whether a jury instruction is sufficient to cure error, the facts of each particular case must be noted. Gonzales v. State, 685 S.W.2d 47 (Tex.Crim.App.1985), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985). The victim’s identification of appellant was direct and unshaken. Her comment, directed to appellant, did not interject any new or harmful fact before the jury. The court’s instruction was sufficient to cure any error. This point is overruled.

The final point of error alleges error because “the prosecutor interjected her personal opinion concerning a probated sentence for appellant.” This is the complained of argument:

[PROSECUTOR]
“I submit to you that there is no way, there is no conceivable possibility that this is a probation case. What probation basically does — and I am familiar with the terms of probation in the Code of Criminal Procedure, as is [Defense Counsel], and you will become familiar with those — but basically what probation does in a case is put a defendant back on the street. If Huey Walters gets probation he will be back on the street this afternoon. We are talking about a man who has absolutely—
“[DEFENSE COUNSEL]: That is not correct, your Honor. It is a misstatement of the law under the circumstances.
“THE COURT: Sustain the objection.
“Rephrase it.
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“Now I want you to look at those conditions of probation. They are basically saying that a defendant needs to keep a job, a defendant has a reasonable curfew, a defendant does not commit other offenses against the State, a defendant is going to support his or her family. Those are things that Huey Walters should have been doing all his life. Those are things that you do and those are things that I do and those are things that the average good citizen walking out on the streets of Beaumont does on a daily basis. Huey Walters has already proved to you that probably the most important condition in there of not committing other offenses, he can’t uphold that. He can’t do that.

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Cite This Page — Counsel Stack

Bluebook (online)
777 S.W.2d 734, 1989 Tex. App. LEXIS 2681, 1989 WL 126332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walters-v-state-texapp-1989.