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                                  MEMORANDUM OPINION

                                          No. 04-07-00479-CR

                                Jose Geraldo CASTANEDA-LERMA,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                      From the 198th Judicial District Court, Kimble County, Texas
                                        Trial Court No. 06-1522
                              Honorable Emil Karl Prohl, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 25, 2008

REVERSED AND REMANDED

           Jose Geraldo Castaneda-Lerma was convicted by a jury of sexual assault and sentenced to

fifteen years imprisonment. On appeal, Castaneda-Lerma contends the evidence is insufficient to

support his conviction, the jury charge was fatally flawed, and the trial court erroneously admitted

certain evidence. We reverse the trial court’s judgment and remand the cause to the trial court for

a new trial.
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                                           BACKGROUND

       Around 4:00 a.m., A.T. was taken to the emergency room at a hospital in Kimble County for

heavy vaginal bleeding. Because the Kimble County hospital did not have the necessary equipment

to fully examine or treat her, A.T. was transported to the hospital in Kerrville. A.T. was transported

by ambulance because her blood loss had caused her blood pressure to drop. A.T was examined at

the Kerrville hospital and underwent a fifty-minute surgical procedure to repair a pulsating arterial

bleed. The laceration required eight stitches to repair. Although A.T. initially told her sister, the

hospital personnel, and the investigating officers that the bleeding was the result of a non-consensual

sexual assault, she recanted at trial and testified that the sexual encounter was consensual.

                                            DISCUSSION

       In his first issue, Castaneda-Lerma contends that the jury charge was fatally flawed because

it permitted his conviction on proof different from, and less than, that required to prove the

allegation in the indictment. In reviewing an issue complaining of charge error, we consider two

questions: (1) whether error existed in the charge; and (2) whether harm resulted from the error to

compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If error exists, the

degree of harm necessary for reversal depends on whether the appellant preserved the error by

objection. Id. at 743. When the defendant has properly objected to the charge, reversal is required

if we find “some harm” to the defendant’s rights. Id. When the defendant fails to object, we will

not reverse for jury charge error unless the record shows “egregious harm” to the defendant. Id.

       The indictment in this case alleged that Castaneda-Lerma:

       intentionally or knowingly sexually assault[ed] [A.T.] by causing his sexual organ
       to penetrate the female sexual organ of [A.T.], without [A.T.’s] consent, and the said
       JOSE GERALDO CASTANEDA-LERMA knew that as a result of mental disease
       and defect [A.T.] was at the time of said sexual assault incapable either of appraising
       the nature of the act or of resisting it.

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Therefore, the indictment alleged the sexual assault was without consent based on section

22.011(b)(4) of the Texas Penal Code.1 TEX. PEN. CODE ANN. § 22.011(b)(4) (Vernon Supp. 2007).

        The application paragraph of the jury charge permitted the jury to find Castaneda-Lerma

guilty if the jury found that he caused his male sexual organ to penetrate A.T.’s female sexual organ

without A.T.’s consent. Because the application paragraph did not track the language of the

indictment and apply the theory by which Castaneda-Lerma’s actions were “without A.T.’s

consent,” the jury was required to rely on the definitions portion of the jury charge to determine

whether Castaneda-Lerma’s actions were without A.T.’s consent. In the definitions portion of the

jury charge, the jury was charged as follows:

        Sexual assault is without the consent of the other person if the actor compels the
        other person to submit or participate by the use of physical force or violence; or the
        actor knows that as a result of mental disease or defect the other person is at the time
        of the sexual assault incapable either of appraising the nature of the act or of resisting
        it.

Thus, unlike the indictment which required the State to prove lack of consent based on section

22.011(b)(4), i.e., lack of mental capacity to consent, the jury charge permitted the State to prove

lack of consent under either section 22.011(b)(4) or section 22.011(b)(1), i.e., consent compelled

by physical force or violence. Because the jury charge permitted the jury to convict under a statutory

basis for showing lack of consent that was not alleged in the indictment, error existed in the jury




        1
         Section 22.011(b) provides, in pertinent part, that a sexual assault “is without the consent of the other person
if:
        (1)      the actor compels the other person to submit or participate by the use of physical force or
                 violence; [or]
                                                         ****
        (4)      the actor knows that as a result of mental disease or defect the other person is at the time of
                 the sexual assault incapable either of appraising the nature of the act or of resisting it;”

TEX. PEN. CODE ANN. § 22.011(b) (Vernon Supp. 2007).

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charge. See Jiminez v. State, 727 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d)

(noting indictment must allege specific subsection in section 22.011(b) to authorize conviction).

       Castaneda-Lerma expressly objected to the inclusion of section 22.011(b)(1)’s lack of

consent theory in the jury charge as follows:

       MR. PICKELL: Defendant would object to the second sentence in paragraph –
       paragraph one or the first part of that sentence: “Sexual assault is without the consent
       of the other person if the actor compels the other person to submit or participate by
       the use of physical force or violence.” We would object to that as that was not
       alleged in the indictment.

       THE COURT: Court’s going to overrule your objection.

Because Castaneda-Lerma timely objected to the error in the charge, he is only required to show

“some harm” in order to be entitled to a reversal. Ngo, 175 S.W.3d at 744. We assess the actual

degree of harm in light of the entire jury charge, the state of the evidence, including the contested

issues and weight of probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984).

       Because the charge included a second statutory basis for establishing lack of consent, the

jury was not required to unanimously find that A.T. was incapable either of appraising the nature

of the act or resisting it as a result of a mental disease or defect. Instead, some of the jurors could

have determined Castaneda-Lerma was guilty based on A.T.’s incapacity to consent while those who

believed A.T. had the mental capacity to consent could have determined Castaneda-Lerma was

guilty because he used physical force or violence to compel A.T. to submit or participate. By

permitting the State to establish guilt under alternative theories, the charge lessened the State’s

burden of proof.




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       Although the evidence in regard to A.T.’s capacity to consent was conflicting, the jury was

presented with compelling evidence that force was used during the incident. Dr. Carol Ann Andrus,

who examined A.T. at the Kimble County hospital, stated that A.T. was taken to the emergency

room because she had experienced heavy vaginal bleeding for two hours. Dr. Andrus performed an

external genital exam on A.T. and noted large clots of blood present which indicated some sort of

trauma. Dr. Andrus testified that it would be “fairly unusual in an alleged sexual assault to see

much, if any blood” present. Because the loss of blood caused a drop in A.T.’s blood pressure, she

was transferred to the hospital in Kerrville by EMS. Dr. Andrus further testified that she had

observed other sexual assault victims during the course of her practice, and A.T.’s case “was the

worst case [she] had ever seen.”

       Georgette Robbins was a sexual assault nurse examiner for the Kerrville hospital. After

examining A.T., Robbins determined that A.T. would need assistance from a gynecologist because

she had an arterial bleed that was pulsating and would require surgery to repair. Pictures of A.T.’s

laceration were introduced into evidence. The surgical procedure took approximately fifty minutes,

and A.T. required eight stitches to repair the laceration. In comparison to other surgeries, Robbins

testified that A.T.’s injury was very traumatic - “the only time I’ve ever seen this in my career.”

Robbins stated that the injury was caused by the penis entering the vagina, hitting the vaginal wall,

and causing the tear.

       Finally, the State emphasized the evidence of force during its closing argument, noting, “The

next witness you heard testimony from was Georgette Robbins, and she described the four

centimeter tear in the vagina that was consistent with forcible sexual assault.” “Georgette also said

this was a very traumatic injury, and this was the most serious she has ever seen in her 20 some odd

years delivering babies and assisting in surgeries in the OB/GYM at Sid Peterson Memorial

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Hospital.” The State then emphasized that the jury could convict under either theory with regard

to lack of consent, arguing:

               Even if you think that [A.T.] had the mental capacity to consent, you still
       have sexual assault being without the consent of the other person in the first part of
       the definition, “if the actor compels the other person to submit or participate by the
       use of force or violence.”


              You have enough evidence. You have beyond a reasonable doubt of
       evidence that [A.T.] didn’t consent to it even if she could legally consent to it. Do
       you think that she consented to it?


                Her testimony to the nurses and to different nurses was that he got her from
       behind and grabbed her and forced herself [sic] on it. You’ve also got testimony in
       this transcript as well that Berta [A.T.’s sister] said that [A.T.’s] shoulders were sore
       from that force.


              That’s what we’re talking about. We’re talking about consent, her legal
       capacity to consent; and even if you don’t go that way, you’ve still got that she didn’t
       consent.


After defense counsel gave his closing argument, the State again emphasized the two alternative

theories for finding lack of consent as follows:

                 Now, Mrs. Ahlschwede got into this a little bit, and I want to go into [it] a
       little bit deeper. If you believe from the evidence beyond a reasonable doubt that this
       poor little girl, this poor little handicapped, poor little retarded girl was physically
       and forcibly raped out there by that trash can, you don’t even need to think about
       consent or what her mental picture or attitude or capabilities was [sic]. If you think
       she was physically raped, consent is not the issue.


              It’s only – and that’s the reason we had the testimony because we knew that
       Berta and this little girl were going to come in here and try to tell you that, no, it was
       by consent. So that’s the reason we’ve been having to fight this consent issue.


                But I think the evidence is sufficient right off the bat when you go back there
       to the jury room, and whoever the foreman is says, How many of you think this little

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         girl was physically sexually assaulted, raise your hand. If you’ve got 12, that’s it.
         You don’t even have to think about what her mental picture was.


Therefore, not only did the State emphasize the two possible theories for finding lack of consent,

the State encouraged the jury to convict by finding that Castaneda-Lerma compelled A.T. to submit

by physical force or violence without finding that she did not have the mental capacity to consent.

         Given the nature of the charge error, the state of the evidence, and the prosecutor’s emphasis

of the error, we hold Castaneda-Lerma has shown some harm from the error in the jury charge.

Accordingly, we sustain his first issue.

         Castaneda-Lerma also asserts several other issues; however, we need only address his

challenge to the legal sufficiency of the evidence as that issue is a rendition issue.2 See TEX. R. APP.

P. 47.1 (opinion should be brief as practicable and only address issues necessary to final

disposition); Perrero v. State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d) (noting

appellate court reversing trial court’s judgment on a dispositive issue need not address other remand

issues). Castaneda-Lerma contends the evidence was legally insufficient to establish that as a result

of a mental disease or defect A.T. was at the time of the sexual assault incapable of appraising the

nature of the act or of resisting it.3 We disagree. When a party attacks the legal sufficiency of the

evidence, we view the evidence in a light most favorable to the verdict and determine whether any


          2
            Our failure to address these issues is no indication of whether or not the trial court erred in admitting the
challenged evidence; however, we note that this court has overruled issues challenging the admission of a medical history
given to a sexual assault nurse examiner as hearsay on a number of occasions. See, e.g., Ezell v. State, No. 04-06-00198-
CR, 2007 WL 2778919, at *6-7 (Tex. App.—San Antonio Sept. 26, 2007, no pet.) (not designated for publication); Silva
v. State, No. 04-05-00824-CR, 2006 WL 3612818, at *2 (Tex. App.—San Antonio Dec. 13, 2006, no pet.) (not
designated for publication); McDonald v. State, No. 04-05-00128-CR, 2006 WL 2417177, at *2-3 (Tex. App.—San
Antonio Aug. 23, 2006, no pet.) (not designated for publication); Perez v. State, No. 04-05-00212-CR, 2006 WL 542668,
at *2 (Tex. App.—San Antonio Mar. 8, 2006, no pet.) (not designated for publication).
         3
          We note that this lack of consent theory would have been the only theory included in a hypothetically correct
jury charge which we use in considering the sufficiency of the evidence. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997).

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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 (1979). In this case, the jury heard evidence from various

medical personnel describing A.T. as childlike and functioning at the level of a middle school age

child of 12. One of the investigating officers, who had known A.T. for many years, testified that she

is disabled and cannot fully sustain a normal, everyday life. The other investigating officer stated

A.T. seemed a bit slow and appeared to have some mental retardation. A psychiatrist who evaluated

A.T. testified that A.T. could not consent to have sex under the circumstances with which she was

confronted. Furthermore, A.T. testified, and the jury was able to observe her and evaluate her

abilities. Finally, Castaneda-Lerma had known A.T. for at least two years; therefore, the jury could

have inferred that he had observed the same behavior observed by the testifying witnesses and had

knowledge of A.T.’s mental condition. Therefore, the evidence was legally sufficient to establish

that Castaneda-Lerma knew that as a result of a mental disease or defect A.T. was at the time of the

sexual assault incapable of appraising the nature of the act or of resisting it.

                                            CONCLUSION

         The trial court’s judgment is reversed, and the cause is remanded to the trial court for a new

trial.

                                                        Phylis J. Speedlin, Justice

DO NOT PUBLISH




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