                                                                                ACCEPTED
                                                                            03-14-00228-CR
                                                                                    6231651
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      7/27/2015 11:45:21 AM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK


                     No. 03-14-00228-CR
                     No. 03-14-00229-CR                    FILED IN
                                                    3rd COURT OF APPEALS
                                                         AUSTIN, TEXAS
                             In the                 7/27/2015 11:45:21 AM
                        Court of Appeals                JEFFREY D. KYLE
                         Third District                      Clerk

                         Austin, Texas

                        Troy Williams,
                           Appellant

                                  v.

                      The State of Texas,
                           Appellee

          Appeal from the 147th Judicial District Court
                     Travis County, Texas
    Cause Numbers D-1-DC-12-904077 and D-1-DC-12-904080

                        STATE’S BRIEF


                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County

                                 Angie Creasy
                                 Assistant District Attorney
                                 State Bar No. 24043613
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 (512) 854-9400
                                 Fax (512) 854-4810
                                 Angie.Creasy@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov

Oral argument is not requested
                                     Table of Contents

Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Argument............................................................................................. 3
 Reply Point One: The trial court did not err in refusing to give a jury
 instruction on voluntary release in a safe place................................ 3
 Reply Point Two: The prosecutor’s explanation of parole law was
 proper. ...............................................................................................7
  Reply Point Three: The evidence is legally sufficient to prove
  penetration. .....................................................................................13
Prayer .................................................................................................18
Certificate of Compliance and Service ................................................19




                                                       i
                                   Index of Authorities

     Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ................. 6
Ballard v. State, 193 S.W.3d 916 (Tex. Crim. App. 2006)................... 4
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ..................13
Brown v. State, 98 S.W.3d 180 (Tex. Crim. App. 2003) ..................... 4
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999).............. 2, 13
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ............... 11
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ................. 11
Jackson v. Virginia, 443 U.S. 307 (1979)...........................................13
Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ..................... 4
Nzewi v. State, 359 S.W.3d 829 (Tex. App.—Houston [14th Dist.]
  2012, pet. ref’d) ................................................................................ 8
Rynes v. State, 479 S.W.2d 70 (Tex. Crim. App. 1972) ......................14
Steadman v. State, 262 S.W.3d 401 (Tex. App.—Waco 2008, pet.
  granted) ........................................................................................... 15
Steadman v. State, 280 S.W.3d 242 (Tex. Crim. App. 2009) ............ 15
Steadman v. State, No 10-07-00105-CR, 2009 Tex. App. LEXIS 9594,
  2009 WL 4852156 (Tex. App.—Waco 2009, no pet.)...................... 15
Taylor v. State, 233 S.W.3d 356 (Tex. Crim. App. 2007) ................... 9
Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) .................. 15
Waters v. State, 330 S.W.3d 368 (Tex. App.—Fort Worth 2010, pet.
  ref’d) ................................................................................................10
West v. State, 406 S.W.3d 748 (Tex. App. Houston [14th Dist] 2013,
  pet. ref’d) .......................................................................................4, 5
     Statutes
Tex. Code Crim. Proc. art. 37.07......................................................... 11
Tex. Code Crim. Proc. art. 44.29 ........................................................12
Tex. Pen. Code § 20.04........................................................................ 3
     Rules
Tex. R. App. P. 44.2 ............................................................................10




                                                       ii
                       No. 03-14-00228-CR
                       No. 03-14-00229-CR

                                In the
                           Court of Appeals
                            Third District
                            Austin, Texas

                           Troy Williams,
                              Appellant

                                   v.

                        The State of Texas,
                             Appellee

           Appeal from the 147th Judicial District Court
                      Travis County, Texas
     Cause Numbers D-1-DC-12-904077 and D-1-DC-12-904080

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

   Now comes the State of Texas and files this brief in response to

Appellant’s briefs.


                Summary of the State’s Argument

   Reply Point One: The trial court did not err in refusing to give a

jury instruction on voluntary release in a safe place. Appellant was

not entitled to this instruction because he never performed an overt



                                        1
and affirmative act that informed the victim that she was fully

released from captivity. While Appellant may have let the victim flee

while he was trying to steal her car, that does not count as an

affirmative act which brought home to the victim that she had been

fully released from captivity. Thus, the trial court did not err in failing

to give the requested jury instruction.

   Reply Point Two: The prosecutor’s comments on parole law were

proper. She merely explained how parole eligibility worked with fifty,

sixty, and life sentences, to help the jury understand the parole

instructions. The explanation did not go beyond an attempt to clarify

the jury instructions. The trial court did not abuse its discretion in

overruling Appellant’s objections to the prosecutor’s comments.

   Reply Point Three: The evidence is legally sufficient to prove

penetration. Penetration of the female sexual organ includes any

intrusion beyond the outer labia, or lips. The State does not have to

show that the penis actually entered the vaginal canal. The victim

testified that Appellant’s erect penis was banging, thrusting, and

pounding against her vagina. Additionally, her urethra was red and

irritated, her cervix was red and had a little bit of blood on it, and



                                      2
Appellant’s sperm was found on the victim’s labial swabs. All of this

evidence could lead a reasonable jury to conclude that the contact

between Appellant’s sexual organ and the victim’s sexual organ was

more intrusive than mere contact with her outer vaginal lips, and

therefore, the evidence is legally sufficient to support the jury’s

finding of penetration.


                               Argument

Reply Point One: The trial court did not err in refusing to
give a jury instruction on voluntary release in a safe place.
   Appellant argues that he was entitled to a jury instruction on

voluntary release in a safe place. This instruction tells the jury that if

the defendant proves by a preponderance of the evidence that he

voluntarily released the victim in a safe place, the punishment range

for aggravated kidnapping is lowered to a second degree felony. Tex.

Pen. Code § 20.04(d).

   Appellant argues that he was entitled to this instruction because

he set the victim’s car keys on the ground and turned around to leave,

and he later got into the victim’s car and tried to drive away. He

argues that the victim was released at this point because she was free




                                       3
to walk across the street and contact the AISD employee who was in

the school parking lot.


Case law

   A defendant is entitled to an instruction on every defensive issue

raised by the evidence, regardless of whether the evidence is strong or

weak. But when the evidence fails to raise a defensive issue, the trial

court commits no error by refusing the requested instruction. Muniz

v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).

   In order to raise the issue of voluntary release in a safe place, a

defendant must offer some evidence that he actually released the

victim. West v. State, 406 S.W.3d 748, 766 (Tex. App. Houston [14th

Dist.] 2013, pet. ref’d). The defendant must have performed some

overt and affirmative act that informs the victim that he has been

fully released from captivity. Ballard v. State, 193 S.W.3d 916, 919

(Tex. Crim. App. 2006). Voluntary release does not include rescue or

escape. Brown v. State, 98 S.W.3d 180, 188 (Tex. Crim. App. 2003).




                                     4
Application to the facts

   Appellant never performed an overt and affirmative act that

informed the victim that she was fully released from captivity.

   To begin, Appellant never let the victim have her car keys. He

briefly set them on the ground, but he immediately picked them back

up when the victim tried to get help at the rec center. Additionally, as

the victim tried to walk away, Appellant yelled at her to come help

him start her car. When the victim grabbed her car keys and ran,

Appellant pursued her, pushed her, and took the car keys back. The

victim ended up running across the street, stopping in front of a

stranger’s car, and asking for help. 3RR 95-97.

   As the trial court stated, “at no point was [the victim] quote,

unquote, released.” 6RR 45. While Appellant may have let the victim

escape while he was trying to steal her car, that is not an affirmative

act which brought home to the victim that she had been fully released

from captivity. See West, 406 S.W.3d at 766 (defendant was not

entitled to an instruction on safe release just because he did not

prevent the victim from approaching other people or the police).




                                     5
Thus, the trial court did not err in failing to give the requested jury

instruction.


Harmless error

   For there to be reversible error, the record must show that

Appellant suffered some actual (rather than theoretical) harm.

Almanza v. State, 686 S.W.2d 157, 171, 174 (Tex. Crim. App. 1985).

   In Appellant’s case, there was no harm because the evidence

clearly showed that the victim was not released, much less released in

a safe place. The victim was stranded in the parking lot of a closed

and locked recreation center; she had just been sexually assaulted;

Appellant repeatedly threatened to kill her; Appellant said he had a

gun; Appellant yelled at her when she tried to get help; Appellant took

her car keys and attempted to steal her car; Appellant assaulted her

again when she tried to grab her car keys and run; and she had to run

out, across a street, and stand in front of a stranger’s car to get help. 3

RR 87-97. At no point did Appellant communicate a desire or intent

to release her, much less do any affirmative act to show her that she

was fully released.




                                      6
   In sum, no reasonable juror would have found that Appellant

proved by a preponderance of the evidence that he voluntarily

released the victim in a safe place, and thus, he was not harmed by

the lack of such a jury instruction. For these reasons, Appellant’s first

point of error should be overruled.


Reply Point Two: The prosecutor’s explanation of parole
law was proper.
   During closing argument, the prosecutor stated:

      So then if you go to Page 6 of the charge, it will tell you it
      cannot accurately be predicted how the parole law and
      good conduct time that might be applied to this defendant
      if he is sentenced to a term of imprisonment because the
      application of these laws will depend on decisions made
      by prison or parole authorities.

      What this charge is telling you is, when you go back there
      you can't say, I wonder when he'll be paroled. What you
      do know and what the law provides is that he has to serve
      at least half of the term before he is eligible for parole.
      And, ladies and gentlemen, you cannot consider the
      eligibility, if he is actually going to get paroled. Okay?
      That is not something that you need to be talking about.

      What we do know and as an example, let's say you gave a
      50-year sentence, he would be eligible for parole –

   Appellant objected, arguing that the prosecutor was improperly

directing the jury to consider parole and to do the parole calculations.

The judge overruled the objection, and the prosecutor told the jury:


                                      7
      So what the law provides and what the charge says is that
      the defendant will not become eligible until he serves at
      least half of whatever sentence is assessed. So, for
      example, if it was a 50-year sentence, he would not be
      eligible until 25 years. If it's a 60-year sentence, he is not
      eligible until 30 years. If it's 60 to life, there's still that
      same 30 years. Okay? So he – if you assess a life sentence,
      then he is still eligible at 30 years.

6RR 51-53.

   On appeal, Appellant argues that it was improper to specifically

apply the parole law and calculations to Appellant.


Standard of review

   A trial court's ruling on an objection to improper jury argument is

reviewed for abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).


Case law

   Taylor presents a nearly identical scenario. There, the prosecutor

told the jury, “A 40-year sentence means the defendant becomes

eligible for parole after serving 20 years. A 60-year sentence means

he becomes eligible after serving 30 years. A sentence of life or 75 still

means he becomes eligible after 30 years.” The appellant argued that

it was improper for the prosecutor to explain how parole eligibility


                                      8
rules applied to certain sentences, and also that the prosecutor

stepped over the line by referring to "the defendant" and "he" in his

explanation. Taylor v. State, 233 S.W.3d 356, 358 (Tex. Crim. App.

2007).

   The court of criminal appeals held that the argument was proper,

stating:

      In the case before us, the prosecutor did not convey any
      information beyond what was properly contained in the
      charge when he explained how the parole eligibility rules
      set out in the charge worked with forty, sixty and seventy-
      five year sentences. The explanation simply ensured that
      the jury understood the language set out in the
      instructions. Nor do we ascribe any significance to the
      prosecutor's passing use of the words "defendant" and
      "he" in the course of giving his explanation. The statutory
      instruction itself uses the words "defendant" and "he"
      when describing the rules of parole eligibility. Nothing in
      this case indicates that the prosecutor's explanations went
      beyond an attempt to clarify the meaning of the jury
      instructions.

Taylor, at 359.

   Appellant cites to several cases that held that the prosecutor’s

argument was improper, but these cases all pre-date Taylor, above.

As explained by the Fort Worth Court of Appeals, the reasoning these

cases relied upon, and upon which Appellant now seizes, appears not

to have survived the court of criminal appeals' decision in Taylor. See


                                     9
Waters v. State, 330 S.W.3d 368, 372 (Tex. App.—Fort Worth 2010,

pet. ref’d).


Application to the facts

    Just like Taylor, the prosecutor in Appellant’s case merely

explained how parole eligibility worked with fifty, sixty, and life

sentences. The explanation simply ensured that the jury understood

the parole instructions. The explanation did not go beyond an attempt

to clarify the jury instructions, and the trial court did not abuse its

discretion in overruling Appellant’s objections to the prosecutor’s

argument.


Harmless error

    If the court determines that the trial court erred in overruling

Appellant’s objections to the prosecutor’s comments on the parole

law, the next step is a harm analysis.

    Nonconstitutional error must be disregarded if it does not affect

substantial rights. Tex. R. App. P. 44.2(b). To determine whether

improper comments on parole law affect substantial rights, courts

balance three factors: (1) the severity of the misconduct (prejudicial



                                      10
effect), (2) curative measures, and (3) the certainty of the punishment

assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004).

   Under the first factor, severity of the misconduct, the prosecutor’s

comments concerning parole were brief. Moreover, she explicitly told

the jury that they cannot consider when Appellant will actually get

parole and that they do not need to talk about that. 6RR 51.

   Under the second factor, curative measures, the jury charge

accurately instructed the jury on parole law, per Tex. Code Crim.

Proc. art. 37.07 §4(b), and the trial court also told the jury that “the

law is the charge that is given to you and you will be guided by the

charge.” CR 140-41; 6RR 53. Appellate courts generally presume that

a jury follows the trial court's instructions. Gamboa v. State, 296

S.W.3d 574, 580 (Tex. Crim. App. 2009).

   Under the third factor, certainty of the punishment assessed, the

jury likely would have given Appellant the same punishment even if

the prosecutor had not made the parole comments. Appellant

attacked a 64-year-old woman as she was taking a morning walk on a

hiking trail. He dragged her to the ground and raped her in broad



                                      11
daylight. He told her that he was going to kill her, and she believed

him. Additionally, Appellant had previously been adjudicated for

sexually assaulting a six-year-old girl. 5RR 31-37; SX 72 at 7RR 138;

SX 83 at 7RR 162. Several people testified that Appellant received

extensive sex offender treatment for the prior offense, but clearly he

did not rehabilitate himself. 5RR 38-95. One therapist described

Appellant as very manipulative. 5RR 92. Finally, the jury still could

have considered parole law in its deliberations, based on the trial

court's instructions, even if the prosecutor had not made any

comments about parole.

   Balancing these three factors, the prosecutor's comments were

harmless, and Appellant’s second point of error should be overruled.


Note about Appellant’s requested relief

   Appellant has requested a new trial, but if this court sustains

either point of error above, Appellant is entitled to a new trial on

punishment only. See Tex. Code Crim. Proc. art. 44.29(b).




                                     12
Reply Point Three: The evidence is legally sufficient to
prove penetration.

   Appellant argues that there was no evidence to show that

Appellant’s sexual organ penetrated the victim’s sexual organ and

that the victim said that Appellant did not penetrate her.


Standard of review

   In reviewing the legal sufficiency of the evidence, the appellate

court looks at the evidence in the light most favorable to the verdict

and decides whether a rational jury could have found guilt beyond a

reasonable doubt, based on the evidence and reasonable inferences

therefrom. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010);

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The court presumes

that the jury resolved any conflicts in the evidence in favor of the

verdict because the jury is the sole judge of the weight and credibility

of the evidence. Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 326.

The court does not re-evaluate the evidence or substitute its judgment

for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.

App. 1999).




                                     13
Case law

   Penetration of the female sexual organ includes any intrusion

beyond the outer labia, or lips. The State does not have to show that

the penis actually entered the vaginal canal. Rynes v. State, 479

S.W.2d 70, 72 (Tex. Crim. App. 1972).

   Additionally, the victim does not have to testify that there was

penetration. Penetration can be proven by circumstantial evidence. In

Steadman, for example, the appellant argued that the evidence was

legally insufficient to show penetration of the victim’s sexual organ by

the appellant’s sexual organ because the child victim only said that

the appellant “touched” her tutu (her word for vagina) and put his

penis “on” her tutu. She never said that the appellant penetrated her

or put his penis in her vagina. And although the victim had notches in

her hymen and posterior fourchette, the SANE nurse testified that the

notches were not definitive proof of abuse. Finally, the victim and the

appellant both had gonorrhea, but the appellant admitted touching

the victim’s vagina with a finger on which his semen was present, and

a doctor testified that it was possible to transmit gonorrhea in this




                                     14
manner. Steadman v. State, 262 S.W.3d 401, 404-06 (Tex. App.—

Waco 2008, pet. granted).

    Nevertheless, the court of appeals found that the evidence was

legally sufficient because the evidence could lead a reasonable jury to

conclude that the contact between the appellant’s sexual organ and

the victim’s sexual organ was "more intrusive than contact with her

outer vaginal lips." Id. at 407, quoting Vernon v. State, 841 S.W.2d

407, 409 (Tex. Crim. App. 1992). 1


Application to the facts

    In this case, the victim testified:

         His penis was thrusting very hard against my vagina.
          3RR 91.
         No, it wasn’t just feeling some pressure. His erect penis
          was banging against my vagina. 3RR 135.
         He was pounding against my vagina. 3RR 137.

    She also testified that she felt his erect penis and that he was

thrusting his hips. 3RR 137. Viewing this evidence in the light most

favorable to the verdict, a reasonable jury could have easily inferred

1 Thecourt of appeals went on to find the evidence factually insufficient, but
 the court of criminal appeals reversed, and the evidence was found factually
 sufficient on remand. See Steadman v. State, 280 S.W.3d 242 (Tex. Crim.
 App. 2009); Steadman v. State, No 10-07-00105-CR, 2009 Tex. App. LEXIS
 9594, 2009 WL 4852156 (Tex. App.—Waco 2009, no pet.).


                                          15
that the contact between Appellant’s sexual organ and the victim’s

sexual organ was more intrusive than contact with just her outer

vaginal lips.

      The physical evidence also supported the jury’s finding of

penetration. Diagrams admitted into evidence showed that both the

urethra and the cervix are inside or below the labia. See SX 70 at 7RR

135. The sexual assault nurse examiner testified that the victim’s

urethra was red and irritated, and the victim testified that she felt

burning from her vagina when she used the bathroom the next day.

3RR 105, 163; 4RR 56. Additionally, the nurse noted a few red areas

and a little bit of blood on the cervix. 4RR 57. She testified that the

redness on the cervix could possibly be normal redness, but it is not

normal to see blood there in a postmenopausal woman (such as the

victim). 4RR 60. She testified that the blood could have come from

tearing in the vagina, which would require penetration, although the

tearing could have happened during consensual sex.2 4RR 91-93. The

nurse also testified that she swabbed the victim’s labia, the creases,


2   The victim apparently had sex with her husband some time before being
    assaulted in this case, as her husband’s sperm was found on the vaginal
    swabs. 4RR 131.


                                         16
and the clitoral hood. 4RR 65. A DNA analyst then testified that

Appellant is the source of DNA from sperm found on a labial swab.

4RR 113-14. Again, all of this evidence could lead a reasonable jury to

conclude that the contact between Appellant’s sexual organ and the

victim’s sexual organ was more intrusive than mere contact with her

outer vaginal lips.

   Appellant argues that his DNA could have transferred to the

victim’s labia from her underwear or some other source, but this does

not view the evidence in the light most favorable to the verdict.

Transference is technically possible, but a rational jury could have

rejected this alternative hypothesis. Additionally, while it is true that

the victim told the police that Appellant had not penetrated her, she

explained to the jury that she only meant that she did not think that

his penis had entered the vaginal canal. 3RR 138-39, 149-54, 161-62.

Again, the State is not required to prove this degree of penetration.

Rather, any intrusion beyond the labia is sufficient.

   In sum, the evidence is legally sufficient to support the jury’s

finding of penetration, and this point of error should be overruled.




                                      17
                               Prayer

   The State asks this Court to overrule Appellant’s points of error

and affirm the trial court’s judgment.



                             Respectfully submitted,

                             Rosemary Lehmberg
                             District Attorney
                             Travis County




                             Angie Creasy
                             Assistant District Attorney
                             State Bar No. 24043613
                             P.O. Box 1748
                             Austin, Texas 78767
                             (512) 854-9400
                             Fax (512) 854-4810
                             Angie.Creasy@traviscountytx.gov
                             AppellateTCDA@traviscountytx.gov


                             Timothy Elliott, Law Clerk




                                    18
             Certificate of Compliance and Service
   I hereby certify that this brief contains 3,312 words. I further

certify that, on the 27th day of July, 2015, a true and correct copy of

this brief was served, by U.S. mail, electronic mail, facsimile, or

electronically through the electronic filing manager, to the

defendant’s attorney, Linda Icenhauer-Ramirez, Attorney at Law,

1103 Nueces, Austin, Texas 78701.




                               Angie Creasy




                                     19
