      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00281-CR



                          Naum Antonio Fuentes-Sanchez, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
       NO. 39310, THE HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant, Naum Antonio Fuentes-Sanchez, of eight offenses—two

counts of aggravated sexual assault, burglary of a habitation, two counts of aggravated robbery,

injury to the elderly, and two counts of aggravated assault—all arising out of a single home invasion.

See Tex. Penal Code §§ 22.02, 22.021, 22.04, 29.03, 30.02. The jury assessed his punishment at

confinement in the Texas Department of Criminal Justice for each offense, with the sentences

ranging from 20 years to life. See id. §§ 12.32, 12.33, 22.02(b), 22.021(e), 22.04(e), 29.03(b),

30.02(d). On appeal, appellant complains about the denial of his motion to suppress, unlawful police

conduct, and error in the jury charge. Finding no reversible error, we affirm the judgments of

conviction for burglary of a habitation, aggravated robbery (both counts), and injury to the elderly.

However, through our own review of the record, we have found errors in the written judgments of
conviction for the aggravated-sexual-assault offenses and the aggravated-assault offenses. We

modify those judgments to correct the errors and affirm those judgments of conviction as modified.


                                           BACKGROUND1

                  Shortly after BD and CD, husband and wife, retired to bed the night of April 13, 2009,

appellant and two others broke into their ranch home.2 Hearing the family dog barking at the

intrusion, CD awoke and woke up her husband. With gun in hand, BD went to investigate. He

entered the study and confronted two armed intruders. However, a third intruder ambushed him

from behind. He was then subdued and savagely beaten by the intruders. CD came to her husband’s

aid, hitting one of the intruders on the head with a flashlight and biting him on the hand during the

ensuing struggle, but she too was subdued and beaten. CD was also brutally raped, both vaginally

and anally, by two of the intruders. At some point during the attack, the assailants placed

pillowcases over the victims’ heads and bound their hands and feet with cords. The intruders then

ransacked the house, during which time they continued physically assaulting CD, kicking her about

the body and head as they walked by. The attackers left through the garage, taking several

belongings from the home and driving off in BD’s pickup truck. CD was able to escape her bonds,

free her husband, and drive them to the hospital where they both received emergency treatment for

their injuries.

        1
           Because appellant does not challenge the sufficiency of the evidence to support his
conviction, we provide only a general overview of the facts of the case. See King v. State,
953 S.W.2d 266, 267 (Tex. Crim. App. 1997). We provide additional facts as necessary to advise
the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. The facts
recited are taken from the testimony and other evidence presented at trial.
        2
            In order to protect the privacy of the victims, we refer to them only by their initials.

                                                    2
                Based on information from the victims that one or more of their attackers had

possibly worked for them in the past, police began searching for appellant. When they approached

the open doorway to appellant’s house, the only visible occupant awoke. The officers explained the

purpose of their visit and requested entry. The occupant invited them in and stepped aside to

accommodate their entry. After entering the residence, the officers found additional occupants

sleeping. Among them were appellant and his co-defendants, one of whom had a lump on his head

and a wound on his hand, both consistent with the injuries CD described inflicting on one of her

attackers. The officers secured the occupants and the residence until they obtained a search warrant.

On execution of the search warrant, police recovered several items stolen from the ranch house.

Appellant and four other occupants were detained and transported to the sheriff’s office for

questioning. During his interview, appellant confessed his participation in the home invasion,

including the beating of both BD and CD and the sexual assault of CD.

                Appellant was charged in an eight-count indictment with multiple offenses stemming

from the home invasion.3 Following a jury trial, appellant was convicted of all eight offenses. The

jury assessed his punishment at imprisonment in the Texas Department of Criminal Justice for each




       3
           In particular, appellant was charged with the following offenses:

       Count One: aggravated sexual assault of CD (penetration of her sexual organ).
       Count Two: aggravated sexual assault of CD (penetration of her anus).
       Count Three: burglary of a habitation.
       Count Four: aggravated robbery of BD.
       Count Five: aggravated robbery of CD.
       Count Six: injury to the elderly of BD.
       Count Seven: aggravated assault of BD.
       Count Eight: aggravated assault of CD.

                                                  3
offense with the sentences ranging from 20 years to life.4 At the State’s request, the trial court

ordered the life sentence imposed for Count Two to be served consecutively to the life sentence

imposed for Count One.


                                            DISCUSSION

                In three points of error on appeal, appellant complains about the trial court’s denial

of his motion to suppress, the unlawful entry of his home by police, and error in the jury charge.


                                         Motion to Suppress

                Prior to trial, appellant filed a general motion to suppress. At the pretrial suppression

hearing, appellant clarified for the trial court that he sought to suppress two recorded statements:

a video recording of appellant’s interview with a Texas Ranger and a subsequent audio recording

made in the ranger’s patrol car when appellant directed law enforcement officials to the location of

stolen property. At the conclusion of the suppression hearing, the trial court found that appellant’s

statements were freely and voluntarily made.5

       4
           Specifically, the jury assessed appellant’s punishment as follows:

       Count One, aggravated sexual assault: Life imprisonment and a $10,000 fine.
       Count Two, aggravated sexual assault: Life imprisonment and a $10,000 fine.
       Count Three, burglary of a habitation: 50 years.
       Count Four, aggravated robbery: Life imprisonment.
       Count Five, aggravated robbery: Life imprisonment.
       Count Six, injury to the elderly: Life imprisonment and a $10,000 fine.
       Count Seven, aggravated assault: 20 years.
       Count Eight, aggravated assault: 20 years.
       5
          At trial, the judge instructed the jury in the court’s charge that it should not consider any
statements by appellant for any purpose unless it believed beyond a reasonable doubt that appellant
voluntarily made the statements.

                                                   4
                 In his first point of error, appellant challenges the trial court’s denial of his motion

to suppress.     He argues that several circumstances demonstrate that, under the totality of

circumstances, his statements were involuntary: the denial of an attorney, his apparent illness during

the interview, a brain injury, and cultural and language barriers that diminished his ability to

understand and comprehend his situation.6 He also mentions in his brief that he was not allowed to

shower, he “had possibly gone without sleep,” he was interrogated over a number of hours, and some

of the interrogation was conducted before the video recording began.7

                 We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, applying a bifurcated standard of review in which we give almost total deference to a trial

judge’s findings of historical fact and credibility determinations that are supported by the record, but

review questions of law de novo. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013);

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). When considering whether a statement

was voluntarily made, we look to the totality of the circumstances surrounding its acquisition. Delao

v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007).

                 The record of the suppression hearing reflects that appellant and four other occupants

of the residence, including his two co-defendants, were taken into custody the evening of

April 14, 2009, the day following the night of the home invasion. They were transported directly

to the sheriff’s office for interviews. Jesse Ramos, a ranger with the Texas Department of Public



        6
            Appellant is from El Salvador.
       7
          Initially, we note that appellant did not assert at the suppression hearing that the length of
the interview, not being allowed to shower, the unrecorded portion of the interview, his illness
during the interview, or a brain injury were circumstances that rendered his statements involuntary.

                                                    5
Safety, conducted the interviews.8 The interview of the first suspect began at approximately

8:45 p.m. The suspects were interviewed in turn until approximately 4:00 a.m. At that time, after

the interview of the fourth suspect, all five suspects were taken to the Burnet County jail. The

following afternoon, appellant was brought back to the sheriff’s office for his interview. After a

brief preparation period during which Ranger Ramos established a rapport with appellant and

confirmed that he could communicate with him, the video recording of appellant’s interview began

at approximately 2:25 p.m. The video recording of appellant’s statement demonstrates that

appellant’s interview lasted approximately 23 minutes. At the end of the interview, appellant agreed

to go with law enforcement officials to show them the location of some stolen property. The audio

recording of appellant and Ranger Ramos as they traveled in the ranger’s car lasts approximately

one hour.9

               Although is undisputed that appellant was in custody throughout the night awaiting

his interview, the record reflects that his actual interview lasted less than two hours. Accordingly,

we reject appellant’s assertion that he was “interrogated over a number of hours” and that such

circumstance rendered his statements involuntary. In this case, the mere length of the questioning,

which was not excessive, does not require the conclusion that appellant’s statements were

involuntary.

       8
           Ranger Ramos was certified by the Texas Department of Public Safety as proficient and
fluent in Spanish. He routinely spoke Spanish and translated that language throughout his 28 years
as a ranger.
       9
          The length of the audio recording appears to be dictated by the time necessary to travel to
the location to which appellant directed the law enforcement officials. While appellant and Ranger
Ramos spoke throughout the drive, the conversation had multiple pauses and was not a continuous
non-stop interview.

                                                 6
                The trial court made the finding that “the environment and comfort accommodations

were appropriate.” The record supports this finding and refutes appellant’s claims to the contrary.

The record does not demonstrate that appellant was prohibited from showering or deprived of sleep.

Testimony at the suppression hearing indicated that when the suspects were transported to the jail,

initial instructions to the jail staff were to keep them separated and not to allow them showers until

search warrants to collect further evidence from their persons had been obtained. However, the

record does not reflect how long that ban on showers was in effect. On the video recording of his

interview, appellant appears in jail clothing, suggesting that he was allowed to change clothes and

possibly shower. Moreover, even if appellant had still not been permitted to shower by the time of

his interview, we do not find that being prohibited from showering for one day in order to preserve

evidence rendered appellant’s statements involuntary.

                In addition, no evidence supports appellant’s claim that the lack of sleep rendered his

statement involuntary. No evidence in the record reflects that appellant was deprived of the

opportunity to sleep or that he in fact did not sleep. Unquestionably, appellant was held in seclusion

from the time he was taken into custody until his interview. However, the record shows that while

at the sheriff’s office, appellant was kept in a holding cell that had a bench to lie down on, a toilet,

and a water fountain.10 Thus, appellant had access to a place to sleep, bathroom facilities, and water.

The record does not reflect what his accommodations were after he was transferred to the jail. The




       10
          The record reflects that the Burnet County jail used to be located at the sheriff’s office.
When the old jail was shut down, the sheriff’s office retained access to the old booking area that
contains several holding cells. It was in these cells that appellant and the other suspects were held
while waiting to be interviewed by Ranger Ramos.

                                                   7
record does reflect, however, that for the major portion of the night, while in the holding cell at the

sheriff’s office, appellant had the opportunity to sleep. Moreover, nothing in the record suggests that

appellant showed signs of fatigue or sleep deprivation during his interview. Accordingly, we

conclude that the purported lack of sleep did not render appellant’s statements involuntary.

               Appellant also claims that he was ill during the interview and that he suffered from

a brain injury. However, no evidence of such was presented at the suppression hearing. Appellant

offered no medical records or testimony documenting any illness, injury, or diagnosis of brain trauma

at the suppression hearing. The only evidence suggesting a purported brain injury was appellant’s

comment during the ride in Ranger Ramos’s car that he had accidentally “hit [himself] on the head”

six months earlier. Likewise, the only evidence of illness was at the very end of the audio recording

when appellant asked the ranger for a pill because his “whole head [was] hurting.” The judge

watched the video recording of appellant’s interview and listened to the audio recording of the

conversation in the ranger’s car and could have made his own determination as to whether appellant

was ill or otherwise impaired during the interview. Based on his findings, the judge did not construe

appellant’s prior accident or headache sufficient evidence to demonstrate that his statements were

involuntary. Accordingly, we conclude that appellant’s alleged illness and brain injury are not

supported by the record and, in any event, did not render his statements involuntary.

               Appellant argues that because he was from El Salvador, cultural and language barriers

diminished his ability to understand his rights and the situation he was in. He claims that he did not

understand why he was being questioned and that he ignorantly talked to law enforcement because,

as an El Salvadoran national, he did not understand the dialect of the ranger. The record does not



                                                  8
support this claim. Before interviewing appellant, Ranger Ramos informed appellant of his rights

in Spanish and confirmed that appellant indicated that he understood those rights. The ranger

testified that he read the Miranda warnings to appellant in Spanish and allowed him to see the

warning form, written in Spanish, so he could read it himself. Appellant signed that form, indicating

his understanding of his constitutional rights. Also, once the video recording began, Ranger Ramos

again informed appellant of his constitutional rights. Afterwards, appellant readily answered

questions and conversed with the ranger. Appellant presented no evidence at the suppression hearing

that he was unable to intelligently understand the ranger’s questions or instructions. While it is true

that appellant spoke Spanish with a different dialect, Ranger Ramos testified that only a few words

were different and that he was able to clarify appellant’s meaning as to the words he used. The

ranger’s testimony demonstrates that he was able to effectively communicate with appellant. And

again, the trial court watched and listened to the recorded statements. On the video recording,

appellant can be seen easily conversing with Ranger Ramos. A review of the transcription of the

interview reveals that appellant never expressed confusion or indicated that he did not understand

either the questions or the situation. The same is true of the audio recording. Accordingly, we find

that appellant’s claim of cultural and language barriers is not demonstrated by the record and,

consequently, does not support a finding that his statement was involuntary.

               Finally, appellant raises two procedural issues that he contends demonstrate that his

statements were involuntary: an unrecorded portion of the interview and his alleged request for an

attorney. The record reflects that prior to conducting the recorded interview, Ranger Ramos

met with appellant to prepare for the interview. During this period, which lasted approximately



                                                  9
15 to 30 minutes, Ranger Ramos established a rapport with appellant and confirmed that he could

communicate with him notwithstanding the different Spanish dialects. At the suppression hearing,

the ranger testified that he “established rapport with [appellant], made him feel comfortable, told him

who I was, asked about him, his family life, read him his rights, and then instructed him why I was

there.” He denied physically grabbing appellant, stating that he did not touch appellant at all, and

testified that he did not make any threats or promises. The record does not contain any evidence that

anything untoward or coercive occurred during this unrecorded preparation time. We conclude that

this unrecorded preparation time was not a circumstance that rendered appellant’s

statement involuntary.

                 Appellant also argues that his request for a lawyer was ignored and that his invocation

of counsel rendered his statement involuntary. The statement that appellant asserts was an

invocation of his right to counsel occurred during the video recorded interview after appellant had

already provided details of the offenses, including the beating of both BD and CD and his sexual

assault of CD:


       Appellant:        Look, allow me . . . if I can ask you a question. Can you see if there
                         could be an arrangement from, from this problem man?

       Ramos:            How?

       Appellant:        To get an attorney and truthfully some well, some will help . . . to
                         [get] out of this quickly.

       Ramos:            Well quickly, I don’t know because we’re still (inaudible) the case —
                         real real serious and that’s why I want to know everything . . . .




                                                   10
At the conclusion of the suppression hearing, after watching the video recording of appellant’s

interview and reading the transcription of it, the trial court held that appellant did not invoke his right

to counsel. We agree.

                An accused has the right to have an attorney present during custodial interrogation.

Edwards v. Arizona, 451 U.S. 477, 482 (1981); see U.S. Const. amends. V, XIV. Once an accused

has invoked that right, police interrogation must stop until counsel has been made available or the

accused himself initiates a dialogue with the police. Edwards, 451 U.S. at 484–85; State v. Gobert,

275 S.W.3d 888, 892 (Tex. Crim. App. 2009). However, not every mention of a lawyer will suffice

to invoke the right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 888;

Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). An ambiguous or equivocal

statement regarding counsel does not require officers to halt the interrogation or even to seek

clarification. Davis v. United States, 512 U.S. 452, 461–62 (1994); Gobert, 275 S.W.3d at 892. A

suspect must articulate his desire for counsel to be present for purposes of custodial interrogation,

and he must do so with sufficient clarity that a reasonable officer under the circumstances would

understand it to be just that. Davis, 512 U.S. at 459; Gobert, 275 S.W.3d at 892–93; see Lucas v.

State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989) (“The right to counsel is considered invoked where

a person indicates he or she desires to speak to an attorney or have an attorney present during

questioning.”). Whether the particular mention of an attorney constitutes a clear invocation of the

right to counsel during questioning depends on the statement itself and the totality of the surrounding

circumstances. Davis, 512 U.S. at 459; Gobert, 275 S.W.3d at 892.




                                                    11
               Here, appellant’s reference to a lawyer to “get out of this quickly” was not an

unambiguous invocation of his right to have counsel present during questioning because a reasonable

officer would not necessarily have understood such statements as a request for an attorney.11 His

mention of a lawyer combined with his asking about “an arrangement from this problem” suggests

that appellant wanted help to resolve the situation. At best, his comments were a request for legal

representation to dispose of the case or engage in plea negotiations. They were not, however, an

unequivocal request to have an attorney present with him during his custodial interrogation prior to

further questioning by Ranger Ramos. Under these circumstances, we conclude that the trial court

did not abuse its discretion in finding that appellant did not unambiguously invoke his right to

counsel for purposes of custodial interrogation.

               Ultimately, the trial court found that appellant’s statements on the video recording

of the interview were “knowingly and intelligently freely and voluntarily made after waiving his

rights, and the defendant did not invoke counsel or terminate the interview.” The court similarly

found that appellant’s statements on the audio recording were “freely and voluntarily made” without

the invocation of counsel or termination of the interview. Viewed in the light most favorable to the

trial court’s ruling, the record reflects that, under the totality of the circumstances, appellant’s

statements were voluntarily made. See Carter v. State, 309 S.W.3d 31, 41–42 (Tex. Crim. App.

2010) (trial court is “sole and exclusive trier of fact and judge of the credibility of the witnesses,”

particularly when motion to suppress is based on voluntariness of confession) (citing Delao,


       11
          Although the standard is objective, we note that Ranger Ramos testified at the suppression
hearing that he did not consider appellant’s comments to be an unequivocal request to have an
attorney present prior to further questioning.

                                                   12
235 S.W.3d at 238); Green v. State, 934 S.W.2d 92, 98–99 (Tex. Crim. App. 1996) (in context of

determining voluntariness of confession, trial court is sole factfinder and may elect to “believe or

disbelieve any or all” of evidence presented at hearing on motion to suppress). Therefore, we

conclude that the trial court did not abuse its discretion in denying appellant’s motion to suppress.

We overrule appellant’s first point of error.


                                  Entry of Appellant’s Residence

                In his second point of error, appellant argues that all evidence obtained after entry into

his home should be suppressed and his convictions should be reversed because the entry by law

enforcement officers into his home was unlawful. The State responds that appellant failed to raise

this issue with the trial court and therefore waived the complaint. We agree with the State.

                To preserve a complaint for appellate review, the record must show that the complaint

was made to the trial court by a timely request, objection, or motion that stated the grounds for the

ruling that the complaining party sought from the trial court with sufficient specificity to make the

court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A); Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012). Even constitutional rights may be waived if the proper request, objection,

or motion is not asserted in the trial court. Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim.

App. 2002); see Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004).

                Appellant raises his complaint about the purported unlawful entry into his home for

the first time on appeal. He never raised this issue with the trial court, either by a pretrial motion to




                                                   13
suppress or by an objection to the admission of evidence during trial. Accordingly, this complaint

has not been preserved for our review.12 We overrule appellant’s second point of error.


                                    Error in the Jury Charge

               Consistent with Count One of the indictment, the jury charge permitted the jury to

find appellant guilty of aggravated sexual assault if it found beyond a reasonable doubt that he


       did then and there, intentionally or knowingly cause the penetration of the sexual
       organ of [CD] by the Defendant’s sexual organ, without the consent of [CD], and that
       the Defendant did then and there, by acts or words, threaten to cause, or place [CD]
       in fear that, death or serious bodily injury would be imminently inflicted on [BD] or
       [CD], and said acts or words occurred in the presence of [CD.]




       12
           Appellant bases his complaint on the recent decision of the United States Supreme Court
in Florida v. Jardines, handed down after his trial. In Jardines, the Supreme Court held that using
a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search”
within the meaning of the Fourth Amendment. 133 S. Ct. 1409, 1417–18 (2013). Relying on
Jardines, appellant argues that the police entry onto his porch (prior to the entry into his home with
permission) was unlawful because the officers approached his home with specific information about
the suspects and the intent to investigate. However, the Jardines case does not excuse appellant
from the error-preservation requirement. In any event, Jardines does not create a new constitutional
protection or fundamental right. The Fourth Amendment protection (to be free from unreasonable
searches and seizures) has long been afforded to the home and curtilage. Id. at 1414; see Oliver v.
United States, 466 U.S. 170, 180 (1984). The Jardines opinion was limited to the question of
whether the officers’ behavior in using a drug-dog on the defendant’s porch was a search within the
meaning of the Fourth Amendment. Jardines, 133 S. Ct. at 1414. Here, no drug-dog was involved
in the police entry onto appellant’s porch. Appellant reads Jardines too broadly in suggesting that
merely approaching a residence during the course of an investigation with information about a crime
or a suspect constitutes an unlawful search. As the Supreme Court reaffirmed, “a police officer not
armed with a warrant may approach a home and knock, precisely because that is ‘no more than any
private citizen might do.’” Id. at 1416 (quoting Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)).
That is what happened here. The officers approached appellant’s home to conduct a “knock and
talk” during which they were invited into the home. See Valtierra v. State, 310 S.W.3d 442, 448
(Tex. Crim. App. 2010) (owner’s or occupant’s voluntary consent makes entry into residence by
police officers constitutionally “reasonable”).

                                                 14
The Count One application paragraphs also permitted the jury to find appellant guilty of aggravated

sexual assault as a party to the offense committed by either of his co-defendants. The jury

instructions for Count Two were substantially similar to the above language, with the exception that

they refer to the penetration of CD’s anus instead of sexual organ. As with Count One, the Count

Two application paragraphs also permitted the jury to find appellant guilty of aggravated sexual

assault as a party to the offense committed by either of his co-defendants.

                At trial, appellant objected to the inclusion of the phrase “place [CD] in fear that

death or serious bodily injury would imminently be inflicted upon [BD]” in the application

paragraphs of Counts One and Two because, according to appellant, CD testified that at the time of

the sexual assaults, she believed her husband was already dead. The trial court overruled his

objection and included the objected-to language in the jury charge. In his third point of error,

appellant asserts that the trial court erred in doing so.

                The trial court is required to provide the jury with a written charge setting forth the

law applicable to the case. Tex. Code Crim. Proc. art. 36.14. The court’s instructions must “apply

the law to the facts adduced at trial.” Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App.

2012). Thus, the court’s instructions should be reduced to the theories that are supported by the

evidence at trial. Moulton v. State, 395 S.W.3d 804, 810 (Tex. Crim. App. 2013) (citing Sanchez,

376 S.W.3d at 774); see Gray v. State, 152 S.W.3d 125, 128 (Tex. Crim. App. 2004) (“Jury charges

which fail to apply the law to the facts adduced at trial are erroneous.”).




                                                   15
               At trial, CD testified that two of the three intruders sexually assaulted her. The

relevant portions of her testimony about the sexual assault perpetrated by the first assailant were as

follows:


       Q       During this sexual assault, were you in fear for you and you [sic] husband’s
               life?

       A       I thought [BD] was dead, and yes, I thought I was going to die.

       Q       And if your husband wasn’t dead, did you think he would be killed?

       A       That thought never crossed my mind because I thought he was already dead.
               I was worried about -- my main worry at that moment was that our children
               would see the crime scene photos and see us like that, and that really
               upset me.

       Q       Did you feel that the words and actions of these persons constituted a threat
               to the life of you and your husband?

       A       Yes.

       Q       An imminent threat?

       A       Yes, sir.

       Q       And did these words and actions occur in your presence?

       A       Yes, they did.


In addition, CD testified about the sexual assault perpetrated by the second assailant as follows:


       Q       Now, at this point, what are you thinking?

       A       I am going through my confessions, saying the Lord’s Prayer, worried that
               we’re going to die and that, again, our children will see our bodies in crime
               scene photos.



                                                 16
Focusing on the portions of her testimony about her belief that her husband was dead, appellant

maintains that the trial court erred by submitting the alternative theory that CD feared the imminent

infliction of death or serious bodily injury on her husband. He argues that her testimony

demonstrated that she already believed he was dead at the time the sexual assaults occurred, so the

evidence failed to show that she feared that death or serious bodily injury would be inflicted on him.

                However, appellant ignores CD’s confirmation that she felt that the words and actions

of the assailants constituted a threat to the life of her and her husband as well as her testimony that

during the second sexual assault she was “worried that we’re going to die” referring to herself and

her husband. Accordingly, there was some evidence to support the inclusion of the phrase “place

[CD] in fear that death or serious bodily injury would imminently be inflicted upon [BD]” in the jury

charge as an alternative manner and means of committing the aggravated-sexual-assault offenses,

and the trial court did not err by including it.

                Moreover, even if the trial court erred in submitting this alternate theory to the jury

in the application paragraphs for Counts One and Two, we conclude that appellant was not harmed.

See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (properly objected to jury-charge

error requires reversal when defendant suffered “some harm”). In this case there is clearly evidence

in the record that CD feared that death or serious bodily injury would be imminently inflicted on her.

When a jury returns a general guilty verdict on an indictment charging alternate methods of

committing the same offense, the verdict stands if the evidence is sufficient to support a finding

under any of the theories submitted. Sanchez, 376 S.W.3d at 775. The presence of overwhelming

evidence of guilt plays a determinative role in resolving the issue and may be considered when



                                                   17
assessing jury-charge error. Id. Here, CD explicitly testified that throughout the sexual assaults she

feared for her life.

                Having considered the entire record, we find that any error in submitting, in the jury

charge, the alternative theory of fearing imminent death or serious bodily to her husband did not

result in harm. The jury charge permitted the jury to convict appellant either acting alone or as a

party to the aggravated-sexual-assault offenses under at least one theory that was overwhelmingly

supported by the evidence. We overrule appellant’s third point of error.


                                        Cumulation Order

                As an additional matter, we address sua sponte the legality of the trial court’s

cumulation order. At the oral pronouncement of sentence, the trial court granted the State’s motion

to cumulate and ordered the life sentence for Count Two to commence when the life sentence for

Count One ceased to operate. The written judgment of conviction for Count Two reflects this

cumulation order.

                When offenses arising out of the “same criminal episode” are tried in the same

criminal action, the sentences must be concurrent unless a specific statutory exception within chapter

three of the Texas Penal Code provides otherwise. Tex. Penal Code § 3.02(a); Sullivan v. State,

387 S.W.3d 649, 651 (Tex. Crim. App. 2013). One such exception provides that consecutive

sentences may be imposed for convictions for certain types of sexual offenses if the offenses were

committed against a victim younger than 17 years of age. Tex. Penal Code § 3.03(b)(2)(A). This

appears to be the exception the State relied on in this case. However, it is inapplicable here because

CD was not under 17 at the time of the offenses. Thus, the sentence for Count Two does not fall

                                                 18
within this exception. Because no exception applies, the life sentence for Count Two must run

concurrent with the other sentences obtained at trial. See Sullivan, 387 S.W.3d at 651 (sentence for

count involving 17-year-old child victim must run concurrent with other sentences obtained at trial

because it did not fall within sexual-offense exception because child victim was not under 17 at time

of offense); see also Tex. Penal Code § 3.03(a).

               An improper cumulation order is a void sentence. LaPorte v. State, 840 S.W.2d 412,

415 (Tex. Crim. App. 1992). Although appellant has not complained at trial or on appeal about the

cumulation of the Count Two sentence being an illegal sentence, any court with jurisdiction has

inherent authority to notice and take action on an illegal or void sentence at any time, even

sua sponte. Mizell v. State, 119 S.W.3d 804, 805–07 (Tex. Crim. App. 2003). An unlawful

cumulation order is remedied by reforming the judgment to set aside the order. Robbins v. State,

914 S.W.2d 582, 584 (Tex. Crim. App. 1996); see Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim.

App. 2008) (reaffirming that unlawful cumulation order is remedied by reforming judgment to set

aside cumulation order). Accordingly, we modify the judgment of conviction for Count Two to

delete the cumulation order.


                                  Clerical Errors in Judgments

               Finally, we observe that some of the judgments of conviction contain clerical errors.

This Court has authority to modify incorrect judgments when the necessary information is available

to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.

1993). Because the necessary information is available here, we modify the incorrect judgments.




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               First, the written judgment of conviction for the Count One aggravated sexual assault

erroneously states that “THIS SENTENCE SHALL RUN CONSECUTIVELY.” In its oral

pronouncement of sentence, however, the trial court did not order the Count One life sentence to be

served consecutive to any of the other sentences, and, as noted above, the Count One life sentence

was not subject to cumulation given CD’s age. We therefore modify the judgment of conviction for

Count One to delete “CONSECUTIVELY” and instead reflect that the sentence shall run

“CONCURRENTLY.”

               Second, the judgments of conviction for aggravated assault in Counts Seven and Eight

reflect that the “Statute for Offense” is “22.04 Penal Code.” However, section 22.04 of the Penal

Code is the statute for injury to a child, elderly individual, or disabled individual. The statute for

aggravated assault as alleged in Counts Seven and Eight is section 22.02(a)(2) of the Penal Code.

Accordingly, we modify the judgments of conviction for aggravated assault in Counts Seven and

Eight to state that the “Statute for Offense” is “22.02 Penal Code.”


                                          CONCLUSION

               Having overruled appellant’s three points of error, we affirm the trial court’s

judgments of conviction for Counts Three (burglary of a habitation), Four (aggravated robbery), Five

(aggravated robbery), and Six (injury to the elderly). Correcting non-reversible error, we modify the

remaining judgments of conviction as follows: we modify the judgment for Count One (aggravated

sexual assault) to delete “CONSECUTIVELY” and instead reflect that the sentence shall run

“CONCURRENTLY,” we modify the judgment for Count Two (aggravated sexual assault) to delete

the cumulation order, and we modify the judgments for Counts Seven (aggravated assault) and Eight

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(aggravated assault) to reflect that the “Statute for Offense” is “22.02 Penal Code.” As so modified,

we affirm the trial court’s judgments of conviction for Counts One, Two, Seven, and Eight.



                                              __________________________________________
                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed in Part; Modified and, as Modified, Affirmed in Part

Filed: April 17, 2014

Do Not Publish




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