                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00077-CR


JORGE GAUSIN                                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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      Appellant Jorge Gausin appeals from his conviction for aggravated sexual

assault. We affirm.

                             I. BACKGROUND

      On March 18, 2011, Samantha Brown, 2 a convicted prostitute, was walking

home. Appellant approached her and offered her money in exchange for sex.



      1
      See Tex. R. App. P. 47.4.
Brown refused. Appellant attacked her and dragged her into an alley. Brown

screamed for help, and Appellant put dirt and his fist in her mouth, presumably to

quiet her screams. During the struggle, Appellant broke Brown’s arm, and Brown

defecated on herself. Brown feared she was going to die.

        A neighbor, hearing “somebody screaming [her] . . . lungs out for help,”

called the police. When Fort Worth Police Officers Craig Holt and Travis Verrett

arrived, Appellant was on top of Brown, and both were naked from the waist

down.       Holt saw that Appellant’s “fists were going toward” Brown and that

Appellant was choking her and “thrusting up and down on her.” Brown was

screaming, “Save me, save me, he’s raping me.” Appellant looked at Holt and

Verrett “and then turned back and continued doing what he was doing.” When

Holt and Verrett got approximately five to ten feet away from Appellant, he “rolled

over,” and the officers arrested him. In addition to her broken arm, Brown’s face

was “extremely beat up” and had “blood from the nose and everywhere along the

center of her face.” Verrett, an Iraqi war veteran, described the attack as “the

most intimately violent crime [he had] ever witnessed in [his] life.”

        Brown was taken to a hospital. Brown was intermittently conscious during

her almost five-hour examination. The exam revealed that DNA found in Brown’s




        2
        The victim’s name is a pseudonym, which was used throughout the trial.


                                          2
vagina matched DNA found on Appellant’s penis. 3 Brown told the examining

nurse that Appellant had beaten her, had put his penis in her vagina, and had

forced her to fellate him. As a result of her injuries, Brown was hospitalized for

four days.

      Appellant was indicted for six counts of, as he states, “various forms of

sexual and aggravated sexual assault” to which he pleaded not guilty. See Tex.

Penal Code Ann. § 22.02 (West 2011), § 22.021 (West Supp. 2013). At the

conclusion of the first day of testimony, a juror informed the trial court that

another juror was commenting to the jury about his opinions regarding the case.

The trial court’s bailiff also reported that the same juror had stated that “he had

posted on Facebook that he had made the jury.” The next morning, the trial court

reminded the jury that discussion about the case was strictly forbidden until

deliberations began:

      Let me take a moment now to remind each of you of the instructions
      that I gave you on yesterday. As jurors, you are not to have any
      discussion whatsoever about the case. Okay. Absolutely no
      discussion about the case among yourselves, until you have heard
      all the evidence, the Court has given you and read the Court’s
      Charge. And then I will tell you to go into the jury room, and only at
      that time can you discuss the case at all. Okay. There will be
      absolutely no discussion of the case by any of you.

             If anyone attempts to discuss the case with you, please report
      that to me at once, because that would, particularly if a juror is doing


      3
       Although the DNA was neither Appellant’s nor Brown’s, this fact suggests
that Brown had sex earlier in the day with another man and that this semen had
been transferred to Appellant’s penis during the attack.


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       it - - be an act of jury misconduct. So there will not be any
       discussion of the case until the proper time.

No party objected to these instructions, and the State immediately called its next

witness.

       At the conclusion of the evidence, the State waived two of the aggravated-

sexual-assault counts. The jury then was charged on aggravated sexual assault

and sexual assault and found Appellant guilty of aggravated sexual assault.

After a punishment hearing, the jury recommended thirty years’ confinement, and

the trial court sentenced Appellant accordingly.

       Appellant filed a motion for new trial arguing that the sentence was

“excessive and constitutes cruel and unusual punishment.” See Tex. R. App. P.

21. The new-trial motion was overruled by operation of law. See Tex. R. App. P.

21.8(a). Appellant filed a notice of appeal and now argues that the evidence was

insufficient to support his conviction because there was “no evidence of a threat

of death or serious bodily injury” and that the trial court abused its discretion by

failing “to make further inquiry into the violation of the court’s instructions” and by

failing to declare a mistrial.

                                  II. DISCUSSION

                          A. SUFFICIENCY OF THE EVIDENCE

       Appellant’s first issue on appeal is that the evidence was insufficient to

support his conviction for aggravated sexual assault.           Appellant apparently

concedes that the evidence was sufficient to sustain a conviction for sexual



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assault.   Appellant argues, however, that the State did not establish the

aggravating element of his conviction because the evidence did not show that his

actions or words placed Brown in fear of imminent serious bodily injury or death.

See Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii).

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). The trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979). Therefore, our task in a sufficiency review is not to re-evaluate the weight

and credibility of the evidence, but we are to “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper v.

State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). “To determine the presence

of the aggravating nature of an offense, a trier of fact is entitled to consider not

only the injuries actually inflicted and the express verbal threats made by a

defendant, but also his objective conduct, i.e., his acts, words, or deeds.” Dalton

v. State, 898 S.W.2d 424, 429 (Tex. App.—Fort Worth 1995, pet. ref’d),

disapproved of on other grounds by Watkins v. State, 946 S.W.2d 594, 602 (Tex.

App.—Fort Worth 1997, pets. ref’d); see also Tinker v. State, 148 S.W.3d 666,


                                         5
671 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (in challenge to sufficiency of

evidence in aggravated sexual assault conviction, holding courts look to evidence

“overall” and determine whether defendant’s acts, words, or deeds were

sufficient to place reasonable person in victim’s circumstances in fear of death or

serious bodily injury).

      As recounted above, the record shows that Appellant choked Brown, hit

her in the face until she was bloodied, and shoved dirt and his fist in her mouth to

silence her screams for help.     Appellant also broke Brown’s arm during the

struggle.   Brown was so frightened that she defecated on herself during the

attack and testified at trial that she believed Appellant would kill her.      This

evidence, along with the physical examination confirming the severe extent of

Brown’s injuries, was sufficient to allow the jury to have reasonably concluded

that a reasonable person in Brown’s circumstances would have been placed in

fear of imminent serious bodily injury or death by Appellant’s actions.        See

Tisdale v. State, 686 S.W.2d 110, 114–15 (Tex. Crim. App. 1984) (holding

because victim testified she feared serious bodily injury or death, a verbal threat

by defendant not required to enable jury to find implied threat sufficient to uphold

aggravated robbery conviction); Tinker, 148 S.W.3d at 671–72 (concluding jury

could have rationally inferred reasonable person would fear additional serious

bodily injury or death during course of defendant’s sexual assault of victim that

resulted in serious bodily injury to victim); Mata v. State, 952 S.W.2d 30, 32 (Tex.

App.—San Antonio 1997, no pet.) (holding evidence sufficient to support


                                         6
aggravating element of aggravated sexual assault because victim was physically

injured, restrained, and gagged but not verbally threatened); Dalton, 898 S.W.2d

at 430 (noting that use of force can constitute threat regardless of whether

defendant verbally threatens to kill victim). We overrule issue one.

                              B.   JURY MISCONDUCT

      In his second issue, Appellant argues that the trial court abused its

discretion by failing to sua sponte make further inquiry into the report of juror

misconduct and declare a mistrial. When the trial court was informed of the

improper comments made by a juror, the trial court questioned the reporting juror

about the comments that had been made. Neither the State nor Appellant’s

counsel had any questions for the reporting juror even though the trial court

asked if they had any further questions for the reporting juror. When the jury

reconvened, the trial court reinforced its instructions, in strong and clear

language, that the jury was not allowed to communicate about the case with each

other or with those not on the jury. Appellant did not avail himself of any of the

necessary prerequisites that would have preserved any error arising from the

juror misconduct, such as asking the trial court to conduct further inquiry of the

reporting juror or otherwise objecting to the trial court’s remedial actions, moving

for a mistrial, raising the complaint in his motion for new trial, or seeking a formal

bill of exception. See, e.g., Tex. R. App. P. 21.2, 33.1, 33.2; Allen v. State, 180

S.W.3d 260, 266–67 (Tex. App.—Fort Worth 2005, no pet.); Cuellar v. State, 943

S.W.2d 487, 490–91 (Tex. App.—Corpus Christi 1996, pet. ref’d).                Thus,


                                          7
Appellant forfeited any error arising from the improper juror communications. We

overrule issue two.

                              III. CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).

                                                 /s/ Lee Gabriel
                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 13, 2014




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