

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



 
THE STATE OF TEXAS,
 
                            Appellant,
 
v.
 
 
GILBERT SANCHEZ,
 
                           
  Appellee.


§
 
§
 
§
 
§
 
§
 
§ 
 


 
No. 08-11-00380-CR
 
Appeal from the
 
120th
  District Court
 
of El
  Paso County, Texas 
 
(TC# 20100D02745) 
 



 
O
P I N I O N
            Gilbert Sanchez was convicted of aggravated
sexual assault of Jeanette Ribail.  Sanchez
moved for a new trial asserting, among other bases, that the jury charge was
erroneous.  Agreeing that the charge was
erroneous, the trial court granted the motion for new trial.  The State of Texas now appeals, arguing that
the trial court erred by granting the motion for new trial because Sanchez did
not establish that he was egregiously harmed.  Because we conclude that Sanchez did not
suffer egregious harm, we reverse the trial court’s order.
Factual and Procedural Background
            In its charge to the
jury, the trial court defined aggravated sexual assault and instructed the jury
on its application as follows:
A person commits the offense of Aggravated
Sexual Assault if the person intentionally or knowingly causes the penetration
of the sexual organ of another person, by any means, without that person’s
consent, and by the use of physical force or violence, and by acts or words
places the victim in fear that death would be inflicted on any person.
.         
 .           .
If you find from the evidence beyond a
reasonable doubt that . . . SANCHEZ, did . . . intentionally or knowingly cause
the penetration of the female sexual organ of . . . Ribail . . .
without the consent of . . . Ribail by the use of physical force or violence,
and that … SANCHEZ, did . . . by acts or words place . . . Ribail in
fear that death would be inflicted on . . . Ribail, then you shall find . . .
SANCHEZ guilty as charged in Count I of the Indictment . . . .
 
Although Sanchez objected to other portions of the charge, he did not
object to these two paragraphs.
In his motion for new trial, Sanchez asserted
that the charge was erroneous because it omitted an element necessary to
sustain his conviction for aggravated sexual assault:  that Ribail feared her death was
“imminent.”  Sanchez further asserted that
he was harmed because the charge erroneously permitted the jury to convict him
of aggravated sexual assault and assess a punishment commensurate with such an
offense without requiring the State to prove that Ribail feared her death was imminent,
an element distinguishing aggravated sexual assault from sexual assault.
In granting the motion for new trial, the
trial judge did not issue findings of fact and conclusions of law in support of
her ruling.[1]
 See
Tex.R.App.P. 21.8(b).  However, the trial judge made several comments
at the hearing on the motion that revealed her reasoning.  Bothered by the omission of the word “imminent”
in the charge because “that language . . . is the only way that you can be
convicted of an aggravated sexual assault as opposed to just sexual assault,”
the trial judge concluded that “the charge is incorrect[] [a]nd I think that
misdirects the jury.”  The trial judge
concluded further that this omitted element was “a requirement to find
aggravation, and it’s important because the aggravation changes the punishment
range[,]” and “if that’s defective, then you have a different punishment
range.”  Again, she reiterated “[t]he
charge was wrong.”
STANDARD OF REVIEW
            On appeal, the State
concedes that the trial court erroneously omitted from the jury charge the aggravating
element that Ribail feared her death was imminent, thereby misdirecting the
jury about the law.  The State argues,
however, that the trial court’s error did not require it to grant Sanchez a new
trial pursuant to Rule of Appellate Procedure 21.3(b), which states that a “defendant
must be granted a new trial . . . when the [trial] court has misdirected the
jury about the law.”  Tex.R.App.P. 21.3(b).  Rather, citing to Igo v. State, 210 S.W.3d 645 (Tex.Crim.App. 2006), the State
contends that the trial court should have determined whether Sanchez was
entitled to a new trial by applying the harm analysis established in Almanza.[2]
 We agree.
In Igo,
the Court of Criminal Appeals held that the Almanza
harm standard applies to charge errors presented in a motion for new trial.  Igo,
210 S.W.3d at 646-47.  At the trial
level, the trial court denied the appellant’s motion for new trial asserting charge
error.  Id. at 646.  On appeal, the
court rejected the appellant’s argument that Rule 21.3(b) required the trial court
to grant him a new trial and held instead that Almanza dictated the proper analysis of his claim.  Id.  The Court of Criminal Appeals agreed, concluding
that “though appellant characterized his claim as error in denying a new trial,
this case presents error in the charge,” and therefore, review “[a]t the
appellate level” is governed by the standards established in Almanza. 
Id. at 647.
A month after deciding Igo, the Court of Criminal Appeals faced the same issue in State v. McKnight, 213 S.W.3d 915
(Tex.Crim.App. 2007)(per curiam), albeit in a slightly different context.  In McKnight,
unlike in Igo, the trial court
granted appellant’s motion for new trial asserting charge error.  McKnight,
213 S.W.3d at 916.  In affirming
the trial court’s ruling, the appeals court employed a traditional abuse-of-discretion
standard of review, expressly rejecting the parties’ contention that Almanza applied.  State
v. McKnight, 217 S.W.3d 596, 599 (Tex.App.--San Antonio 2006), pet. granted, judgment vacated by State v. McKnight, 213 S.W.3d 915
(Tex.Crim.App. 2007)(per curiam).  Relying upon Igo, the Court of Criminal Appeals reversed and
remanded.  McKnight, 213 S.W.3d at 916.
It is clear that the Almanza harm standard, rather than the traditional
abuse-of-discretion standard, applies to appellate review of charge errors presented
in a motion for new trial.  Nonetheless, Sanchez
contends that the appropriate standard of review in this case is abuse of
discretion.  In support, Sanchez refers
us to several cases, including three unpublished cases from this Court,
articulating the general rule that a trial court’s decision to grant or deny a
new trial is ordinarily reviewed for abuse of discretion.  See State
v. Herndon, 215 S.W.3d 901 (Tex.Crim.App. 2007); Gomez v. State, 08-06-00318-CR, 2009 WL 4831117 (Tex.App.--El Paso
Dec. 16, 2009, pet. ref’d); State v.
Varkonyi, No. 08-06-00262-CR, 2008 WL 821580 (Tex.App.--El Paso Mar. 27,
2008), pet. dism’d, improvidently granted,
No. PD-0587-08, 2009 WL 693499 (Tex.Crim.App. Mar. 18, 2009); State v. Ordonez, 156 S.W.3d 850, 851
(Tex.App--El Paso 2005, pet. ref’d). 
However, none of these cases addresses charge errors presented in a motion for new trial.  See
Herndon (interest of justice); Gomez,
(evidentiary hearing); Varkonyi (interest
of justice); Ordonez, (jury
misconduct).  Moreover, as established
above, this is the very issue the Court of Criminal Appeals addressed in Igo and McKnight.  The
Almanza harm standard is the
appropriate standard for charge errors presented in a motion for new trial.
CHARGE ERROR
We review charge error on appeal by
determining whether error occurred, and if so, whether that error caused
sufficient harm to require reversal.  Ngo v. State, 175 S.W.3d 738, 743-44
(Tex.Crim.App. 2005).  The degree of harm
required for reversal depends on whether the defendant preserved error at
trial.  Id. at 743.  When the defendant preserves error at trial by
timely objection, the record must establish only “some harm” to obtain
reversal.  Id., citing Almanza, 686 S.W.2d at 171.  By contrast, when, as here, the defendant
fails to preserve error at trial, the record must demonstrate “egregious harm”
to obtain reversal.[3]  Id.
at 743-44, citing Almanza, 686 S.W.2d at 171).  Egregious
harm affects the very basis of the case, deprives the defendant of a valuable
right, vitally affects the defensive theory, or makes a case for conviction
clearly and significantly more persuasive. 
Id. at 750.  In other words, egregious harm denies the
defendant a fair and impartial trial.  Id. 
In determining whether the defendant suffered actual harm, not just
theoretical harm, we review:  (1) the
entire charge; (2) the state of the evidence, including the contested issues
and the weight of the probative evidence; (3) the arguments of counsel; and (4)
any other relevant information revealed by the record.  Id.
at 750 n.48.
1.      Error
As mentioned previously, the State concedes
that the jury charge was erroneous because it omitted the aggravating element
that Ribail feared her death was imminent. 
A trial court commits error when it deviates from the statutorily-mandated
language by adding or deleting language.  See
Villarreal v. State, 205 S.W.3d 103, 105 (Tex.App.--Texarkana 2006, pet.
dism’d, untimely filed); Hill v. State,
30 S.W.3d 505, 509 (Tex.App.--Texarkana 2000, no pet.).  Here, the relevant statutorily-mandated
language is found in Section 22.021 of the Penal Code.  Under this section, a person commits the
offense of aggravated sexual assault if he:  (1) intentionally or knowingly causes the
penetration of sexual organ of another person by any means, without that
person’s consent; and (2) by acts or words places the victim in fear that death
will be imminently inflicted on any
person.  Tex.Penal Code Ann. § 22.021(a)(1)(A)(i), (a)(2)(A)(ii)(West Supp.
2012)[Emphasis added].  The trial court
erred in omitting statutorily-mandated language.
2.  Egregious Harm
The State contends that because Sanchez failed
to object at trial to the relevant portions of the trial court’s charge, he was entitled to a new trial only if he
established that he suffered egregious harm. 
Sanchez, on the other hand, contends that he preserved error “via motion
for new trial.”  However, Sanchez does
not argue that raising a claim of charge error in a motion for new trial
preserves his complaint for review under the “some harm” standard established
in Almanza.  Rather, Sanchez argues that, because he
raised his claim in a motion for new trial, we are obligated to review it under
an abuse-of-discretion standard.  The
problem is, as noted above, the Court of Criminal Appeals rejected this argument
in Igo and McKnight.[4]
Sanchez did not preserve his claim of charge error by
raising it in a motion for new trial. 
Accordingly, the trial court could only have granted Sanchez’s motion
for new trial if he established that he suffered egregious harm.
a.  Entire Jury Charge
The jury charge, as a whole, weighs in favor
of concluding that Sanchez suffered egregious harm.  As mentioned above, both the definition of
aggravated sexual assault and the application paragraph in the charge define
the offense without reference to the aggravating element that Ribail feared her
death was imminent.  These are the
critical portions of the charge, and the remaining portions of the charge do
not ameliorate the error.  Nothing in the
charge alerts the jury that it is required to find beyond a reasonable doubt
that Ribail feared her death was imminent in order to convict Sanchez of
aggravated sexual assault.
b.  The Contested Evidence
            The
probative evidence regarding the aggravating element of the offense, i.e., that Ribail feared her death was imminent, was significant and weighs
in favor of concluding that Sanchez did not suffer egregious harm.  To find that Ribail feared imminent death due
to Sanchez’s acts or words, the jury needed to assess whether:  (1) Ribail in fact feared she was going to die
immediately; (2) Sanchez’s conduct was the producing cause of Ribail’s fear; and
(3) Ribail’s fear was reasonable in light of Sanchez’s conduct.  Douglas
v. State, 740 S.W.2d 890, 891 (Tex.App.--El Paso 1987, no pet.). 
Sanchez’s argument that “there is no evidence, not even a scintilla
supporting a finding of guilt on [the aggravating element of imminent
infliction of death],” is not persuasive.
Based on the
evidence adduced at trial, the jury could have rationally determined that these
three sub-elements comprising the aggravating element were proved beyond a
reasonable doubt.  There is no doubt that
Ribail feared imminent death due to Sanchez’s conduct.  Ribail testified that when Sanchez was
suffocating her with a pillow, she saw a white light, asked God, “Is this the
way I’m going to end?,” and was scared she was going to die at that moment.  Ribail also testified that when Sanchez
forced her to the bed and took off her pants and underwear before raping her,
she was scared that he was going to beat her and kill her.
There is also no
doubt that Sanchez’s conduct was the producing cause of Ribail’s fear of
imminent death and that this fear was reasonable in light of Sanchez’s conduct
and the surrounding circumstances.  The
terror began when Sanchez kicked in the front door to Ribail’s trailer,
screamed at Ribail, pinned her down on the bed and the couch, grabbed her by
her hair, beat her, made her bleed, and told her he did not care if she died
then and there.  The terror escalated
when Sanchez slammed Ribail down onto the coffee table after she tried to
escape, suffocated her with a pillow to the point she thought she was going to
die, dragged her by her hair to the bathroom after she tried to escape again, and
brandished scissors and threatened to use them if she tried anything.  The terror culminated when Sanchez forced
Ribail to her bed, took off her pants and underwear, disregarded her plea not to
rape her, and raped her.[5]
c.  The Jury Argument
            The
parties’ closing arguments did much to ameliorate the effect of the error and weigh in favor of concluding that Sanchez did
not suffer egregious harm.  Although the
prosecutor defined aggravated sexual assault without referring to the
aggravating element that Ribail feared her death was imminent, he emphasized
the evidence that showed that Ribail did, in fact, believe her death was
imminent.  Particularly significant was the prosecutor’s
recitation of Ribail’s testimony that she asked God if she was going to die
when Sanchez was suffocating her.  This
was brought to the jury’s attention again when the prosecutor summarized all
that Sanchez did to terrorize Ribail before raping her, including threatening
to kill her by his words and acts, and then asked the jury, “And why shouldn’t
she believe it at that point?  He just
tried to smother her to death with that pillow . . . .”  Defense counsel also emphasized this point when
he asked the jury why the pillow was not collected as evidence if it was so
significant.  In so asking, he stated, in
pertinent part, “and they’re using a pillow and I put it on your face and
you’re thinking that you’re going to die, according to you that you’re going to
die . . . .”
d. 
Other Relevant Information:  Voir
Dire
As was the case with the parties’ closing
arguments, the prosecutor’s arguments to the jury during voir dire ameliorated, rather than exacerbated,
the effect of the error and weigh in
favor of concluding that Sanchez did not suffer egregious harm.  When defining aggravated sexual assault and
its elements, the prosecutor mentioned several times to the jury that the
defendant’s acts and words must place the victim in fear of being killed.  In one of those instances, the prosecutor
elaborated to the jury that what made the offense aggravating was that the
defendant, “[b]y acts or words . . . places the victim in fear that death is
going to happen . . . will be imminently inflicted on the victim, on the person
. . . .”
e. 
Summary
            To have suffered
egregious harm, Sanchez was required to establish that the omission of the
aggravating element affected the very basis of his case, deprived him of a
valuable right, or vitally affected a defensive theory.  He attempts to do so by arguing that the omission
of the aggravating element from the charge deprived him of a valuable right
because the jury could have convicted him of aggravated sexual assault without
finding an essential element of the offense. 
As support, Sanchez cites to Flores
v. State, 48 S.W.3d 397 (Tex.App.--Waco 2001, pet. ref’d).  However, Flores
is distinguishable.
Flores stands for the proposition that a jury
charge is fundamentally defective and thus egregiously harmful per se when it authorizes conviction for
conduct that is not an offense.  See Flores, 48 S.W.3d at 402 (holding
that jury charge permitting jury to convict defendant of criminally negligent
homicide, a lesser-included offense of murder, was egregiously harmful per se because the application
paragraph, which charged defendant with two alternative means of causing the
death of the victim, omitted the words “which caused the death of [victim]”
from the application paragraph on the second alternative means).  This is not the case here.  As established above, the evidence was
sufficient for the jury to have determined that Sanchez, by words and acts,
placed Ribail in fear that her death was imminent.  Sanchez was therefore not deprived of a jury
determination beyond a reasonable doubt as to this aggravating element.  Thus, while we agree that the omission of the
aggravating element was erroneous, we cannot conclude that the omission in this
case constitutes egregious harm.
Considering and weighing the jury charge, contested
evidence, closing arguments of counsel, and voir
dire, we conclude that Sanchez has failed to show that he was egregiously
harmed as a result of the error in the charge. 
We therefore hold that the trial court erred in granting the
motion for new trial.  Accordingly, we sustain the State’s sole issue.
CONCLUSION
            The trial court’s order
granting Sanchez’s motion for new trial is reversed.  This case is remanded to the trial court for entry
of judgment in accordance with the jury’s verdict.
 
 
 
October 17, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before McClure,
C.J., Rivera, and Antcliff, JJ.
 
(Publish)




[1]
The State requested that the trial
court issue findings of fact and conclusions of law.
 


[2]
Almanza v. State, 686 S.W.2d
157 (Tex.Crim.App. 1985)(op. on reh’g).


[3]
As noted above, Sanchez failed to object to the portions of the trial court’s
charge about which he now complains.


[4]
In concluding in Igo that the Almanza harm
standard, rather than the traditional abuse-of-discretion standard, applied to appellate
review of charge errors presented in a motion for new trial, the Court of
Criminal Appeals stated:
 
If appellant were
correct, defendants would no longer be required to preserve a jury-charge error
at trial so long as the issue was raised in a motion for new trial because any
error in the charge could be said to ‘misdirect’ the jury.  That result contradicts the policy of
encouraging the timely correction of errors, which is embodied both in Article
36.19 and in our own rules of appellate procedure.  Appellant’s reasoning would essentially
exempt any jury-charge error from any sort of harmless-error analysis even when
the erroneous instruction might have been fixed had the defendant brought the
error to the trial court’s attention.  Such
a result would essentially eviscerate the two-tiered harm analysis required by
statute and do away with the requirement that egregious harm be shown when the
defendant has failed to timely urge an objection.
 
Igo, 210 S.W.3d at 647.


[5]
We are aware that Ribail’s ordeal did not end after Sanchez raped her.  Ribail testified that after Sanchez raped
her, he did the following before releasing her: 
(1) made her clean herself and then lie down next to him on the bed in
her trailer; (2) took her to his trailer where he brandished a gun imploring
her to use it on him and then threatened to use it to kill himself; and (3)
made her shower with him to clean her some more.  However, we must disregard this evidence from
consideration because it followed the rape and therefore did not contribute to
its accomplishment.  See Douglas v. State, 740 S.W.2d at 892 (disregarding defendant’s
statement to the victim after he raped that she was a “dead duck” if she called
the police because it was a conditional threat following the rape and thus did
not contribute to its accomplishment).


