Affirmed and Memorandum Opinion filed July 31, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-01106-CR

                     DOUGLAS WAYNE RING, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                        Trial Court Cause No. 64814

                 MEMORANDUM                      OPINION


      Appellant Douglas Wayne Ring appeals his conviction for sexual assault. In
a single issue, appellant argues the evidence is insufficient to show the complainant
did not consent after she became an adult. We affirm.

                                  BACKGROUND

      A jury found appellant guilty of sexual assault of a child and sexual assault.
The record reflects that appellant sexually assaulted C.R., his biological daughter,
repeatedly over the course of approximately 12 years. Appellant was indicted for
two counts of sexual assault of a child and three counts of sexual assault. Appellant
does not challenge his conviction for sexual assault of a child.

      C.R. testified that her father began sexually abusing her at the age of eight.
He repeatedly abused her throughout her grade school years. When C.R. was in the
fifth grade, appellant took away her toys and deprived her of sleep until she
submitted to sexual intercourse. When C.R. fell asleep, appellant would wake her
and continue to wake her “until [she] finally said yes to get it over with so [she]
could go to sleep.” Appellant would not allow C.R. to play outside until she
submitted to sexual intercourse. C.R. testified that when she was in the fifth grade,
appellant would suck C.R.’s breasts ignoring C.R.’s statements that appellant’s
actions hurt her.

      C.R. testified that when she was in the sixth grade she and her father
engaged in a routine of intercourse after school. At a middle school lecture about
sexual education, C.R. learned that her father’s behavior was inappropriate. After
that time, C.R. testified she became “emotionally numb.” During this time,
appellant continued to coerce sex from C.R. by limiting her visits to her maternal
grandmother. C.R. testified that she was permitted to visit her grandmother only
after he had “ejaculate[d] in [her] 10 times.”

      When C.R. entered high school, appellant entered into “stipulations” with
C.R. in which he would pretend to agree to stop intercourse after a “set amount of
time frame if [she] did certain things his way.” C.R. described the “certain things”
as kissing appellant and moving “in sync with him.” C.R. testified that she did not
want to participate in intercourse with her father, but when he forced her to have
intercourse, she would sometimes remove her own clothing to deprive him of the
pleasure of doing so. In high school, appellant began to demand oral sex and

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performed oral sex on C.R. even though she asked him to stop.

       C.R. repeatedly asked appellant to stop abusing her; appellant refused to stop
abusing her, but entered into “stipulations” as described above. C.R. attempted to
report the abuse to her mother, but when appellant learned of her attempt he “threw
[her] down on the bed and started choking [her].” C.R. described one incident in
which her mother discovered appellant abusing C.R.; C.R.’s mother “pulled
[appellant] off of [C.R.] and told him that there was a better way to discipline
[C.R.] and if he wanted to discipline [C.R.] to use the belt.” According to C.R.’s
testimony, appellant threatened to kill her multiple times.

       After C.R. graduated from high school and was over 17 years old, she
enlisted in the United States Air Force and attended basic training in San Antonio.
After approximately one month in basic training, in August, 2000, C.R. returned
home because she was afraid of what appellant might do to her two younger
sisters. In January, 2001, C.R. discovered she was pregnant with appellant’s child
for the second time.1 That pregnancy resulted in a miscarriage approximately two
months later. C.R. testified that after the miscarriage, appellant was still forcing her
to have sex with him.

       Sometime after C.R. had returned home appellant gave her a CD he had
made containing a video of the two of them engaging in sexual intercourse.
Appellant told C.R. that if she “said anything to anyone about what had happened,
that he would send that to everyone that [C.R.] knew and they would never speak
to [her] again.” When asked at trial whether she wanted to engage in sexual
intercourse with her father after she turned 18, C.R. answered, “No.”

       In 2003, C.R. became pregnant with her father’s third child. The pregnancy
       1
          C.R. first became pregnant with her father’s child while in high school. C.R. testified
that her father took her to a clinic in Houston where she had an abortion.

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was carried to term. In 2005, C.R. confronted appellant and reported the abuse to
authorities.

      A DNA expert testified that there is a 99.99 percent chance that appellant is
the father of C.R.’s child. The expert also tested the fetal material from the 2001
miscarriage, and testified that there is a 99.4 percent chance that appellant was the
father.

      After his arrest, appellant gave a video-taped statement to police, which was
played in its entirety for the jury. In the statement appellant denied the allegations
made by C.R.

      Appellant presented the testimony of C.R., C.R.’s mother, and C.R.’s sisters.
C.R. admitted to using cocaine and marijuana from 2005 to 2007. C.R.’s mother
and her sisters testified that, despite DNA evidence that appellant fathered at least
two children by C.R., they did not believe C.R.’s allegations because C.R. had a
history of lying, drug use, and sexual promiscuity.

      The jury found appellant guilty of one count of sexual assault of a child and
three counts of sexual assault, and assessed punishment at 20 years for the sexual
assault of a child count and 10 years for sexual assault. The trial court denied the
State’s motion to cumulate the sentences and ordered appellant’s sentences to run
concurrently.

                                     ANALYSIS

      In a single issue appellant challenges the sufficiency of the evidence to
support his conviction for sexual assault. On appeal, appellant does not challenge
his conviction for sexual assault of a child, nor does he challenge the evidence that
sexual intercourse occurred. Appellant argues that the evidence is insufficient to
support a finding that C.R. did not consent to intercourse after she became an adult.

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      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In making this review, an appellate court considers all evidence in the
record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013).

      We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Romero v. State, 406 S.W.3d 695, 697 (Tex.
App.—Houston [14th Dist.] 2013, pet. stricken). We defer to the jury’s
responsibility to resolve any conflicts in the evidence fairly, weigh the evidence,
and draw reasonable inferences. Id. The jury alone decides whether to believe
eyewitness testimony, and it resolves any conflicts in the evidence. Id. In
conducting a sufficiency review, we do not engage in a second evaluation of the
weight and credibility of the evidence, but only ensure the jury reached a rational
decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d).

      As a predicate to our consideration of appellant’s sufficiency issue, it is
necessary to discuss the language of the amended indictment. Each of the three
counts alleging sexual assault allege that appellant “did then and there intentionally
or knowingly cause the penetration of the female sexual organ of [C.R.], by
defendant’s sexual organ, without the consent of [C.R.]” None of the counts
specified a manner in which the State alleged appellant’s sexual assault of C.R.
was without her consent.

      A person commits sexual assault if he intentionally or knowingly causes the

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penetration of the anus or sexual organ of another person by any means, without
that person’s consent. Tex. Penal Code § 22.011(a)(1)(A). Section 22.011 lists
eleven circumstances which define “without consent.” Id. § 22.011(b)(1)–(11). In
this case, the jury was instructed that, “A sexual assault is without the consent of
the person if [t]he other person has not consented and the actor knows the other
person is unconscious or physically unable to resist[.]” See Tex. Penal Code §
22.011(b)(3).

      Although previously we measured evidentiary sufficiency against allegations
in the application paragraph of the charge as submitted, we now look to the
“hypothetically correct jury charge” to identify the essential elements for
measuring sufficiency. Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App.
2001). The hypothetically correct jury charge “accurately sets out the law, is
authorized by the [charging instrument], does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was on trial.”
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Our reliance on the
hypothetically correct jury charge “ensures that a judgment of acquittal is reserved
for those situations in which there is an actual failure in the State’s proof of the
crime rather than a mere error in the jury charge submitted.” Id.

      The State generally is not obliged to plead one specific means of committing
an offense. See Geick v. State, 349 S.W.3d 542, 547 (Tex. Crim. App. 2011). If the
State elects to allege only certain of the available statutory alternatives for
committing the charged offense, however, the State must prove the offense by one
of the chosen methods alleged in the charging instrument. Id.; see also Curry v.
State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

      The hypothetically correct jury charge standard therefore requires sufficient

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evidence that the offense was committed in a manner that does not materially vary
from the allegations in the charging instrument. Gollihar, 46 S.W.3d at 246–47.
Descriptions of the offense that are not derived from the language of the
authorizing statute need not be incorporated into the hypothetically correct jury
charge unless omitting them would affect the “allowable unit of prosecution.”
Johnson v. State, 364 S.W.3d 292, 297–98 (Tex. Crim. App. 2012). Such non-
statutory “variances” are considered immaterial to the sufficiency of the evidence.
Id. at 295.

      On appeal, appellant challenges the sufficiency of the evidence to support a
finding that the sexual assault was without consent because appellant knew C.R.
was “unconscious or physically unable to resist.” In Fongang v. State, No. 07-11-
00358-CR; 2013 WL 5460002 (Tex. App.—Amarillo Sept. 30, 2013, pet. ref’d)
(mem. op. not released for publication), the Amarillo Court of Appeals held that
the hypothetically correct jury charge, against which we must measure the
sufficiency of the evidence, would not have been so limited. Id. at *4.

      Relying on the Court of Criminal Appeals’ analysis in Geick v. State, 349
S.W.3d 542, 545 (Tex. Crim. App. 2011), the Amarillo Court held that absent a
“notice-based motion to quash,” the State was not required to allege in the
indictment the specific manner in which the sexual assault was without consent.
Fongang, 2013 WL 5460002 at *2. The court determined that a hypothetically
correct jury charge would have authorized conviction if the jury found the sexual
assault was without the complainant’s consent for any of the statutory reasons
supported by the evidence. Id. at *4.

      In Geick, the Court of Criminal Appeals analyzed provisions of the Penal
Code concerning theft, sections 31.01 and 31.03. 349 S.W.3d at 546. The court
noted the statutes contain three ways in which an appropriation of property may be

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unlawful, one of which is that “it is without the effective consent of the owner.” Id.
at 546. The court further noted that the statutes list five ways in which consent is
not effective. The theft indictment in Geick specified one of the five circumstances
that make consent ineffective, that of consent induced by deception. Id.
Considering the effect of that specific statutory allegation on the hypothetically
correct jury charge against which the sufficiency of evidence would be judged, the
court followed its analysis in Cada v. State, 334 S.W.3d 766 (Tex. Crim. App.
2011), in holding that the indictment’s narrow allegation that the appropriation was
without consent because of deception required the State to prove that specific
allegation. The court made clear, however, that absent a “notice-based motion to
quash,” the State was not required to allege the manner in which consent to
appropriation of property was ineffective. Id. at 547.

      Like the theft statutes, the sexual assault statute lists several circumstances
under which a sexual assault is without consent. Tex. Penal Code § 22.011(b). The
Texas Penal Code states that a sexual assault is without the consent of another
person if:

      (1) the actor compels the other person to submit or participate by the
      use of physical force or violence;
      (2) the actor compels the other person to submit or participate by
      threatening to use force or violence against the other person, and the
      other person believes that the actor has the present ability to execute
      the threat;
      (3) the other person has not consented and the actor knows the other
      person is unconscious or physically unable to resist;
      (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;
      (5) the other person has not consented and the actor knows the other
      person is unaware that the sexual assault is occurring;

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      (6) the actor has intentionally impaired the other person’s power to
      appraise or control the other person’s conduct by administering any
      substance without the other person’s knowledge;
      (7) the actor compels the other person to submit or participate by
      threatening to use force or violence against any person, and the other
      person believes that the actor has the ability to execute the threat;
      (8) the actor is a public servant who coerces the other person to
      submit or participate;
      (9) the actor is a mental health services provider or a health care
      services provider who causes the other person, who is a patient or
      former patient of the actor, to submit or participate by exploiting the
      other person's emotional dependency on the actor;
      (10) the actor is a clergyman who causes the other person to submit or
      participate by exploiting the other person’s emotional dependency on
      the clergyman in the clergyman’s professional character as spiritual
      adviser; or
      (11) the actor is an employee of a facility where the other person is a
      resident, unless the employee and resident are formally or informally
      married to each other under Chapter 2, Family Code.

Tex. Penal Code §22.011(b).

      In Fongang, the Amarillo Court of Appeals determined that the manner in
which the sexual assault is without the complainant’s consent is not an element of
the offense required to be included in the indictment. Fongang, 2013 WL 5460002
at *2. We agree with the Amarillo court’s analysis, and hold that in this case, given
the absence of a “notice-based motion to quash,” the State was not required to
allege in the indictment the specific manner in which appellant’s sexual assault of
C.R. was without her consent. Therefore, a hypothetically correct jury charge
would have authorized conviction if the jury found the sexual assault was without
the complainant’s consent for any of the statutory reasons supported by the
evidence.

      Appellant argues that after C.R. returned home from basic training, “[t]he

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evidence does not support the actions of an adult attempting to flee unwanted
sexual and threatening behavior from another adult.” Appellant admits that C.R.
testified that she did not want to engage in sexual intercourse, but argues that she
did not communicate her resistance to appellant. Appellant argues C.R. did not
testify she “was under duress by a force or threat, nor is there evidence she was
incapacitated.” Appellant further argues there is no evidence that C.R. “informed
appellant she did not consent to sexual intercourse or was under duress to engage
in sexual intercourse.”

      Explicit verbal threats and physical injury are not necessary to prove a
defendant compelled a victim’s participation. Edwards v. State, 97 S.W.3d 279,
291 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The fact finder considers
the totality of the factual circumstances in determining whether the victim
consented. Brown v. State, 576 S.W.2d 820, 823 (Tex. Crim. App. 1978); see also
Graves v. State, 994 S.W.2d 238, 243–44 (Tex. App.—Corpus Christi 1999, pet.
ref’d) (finding evidence of implicit threat of force when defendant threatened to
beat victim as he had done on at least one prior occasion); Smith v. State, 719
S.W.2d 402, 403 (Tex. App.—Houston [1st Dist.] 1986, no pet.) (finding evidence
of physical force and violence where victim passively accepted sexual intercourse
because she had been forced to submit to sexual demands by being beaten most of
her life); Vasquez v. State, No. 07-01-00232-CR; 2002 WL 737369 at *2–3 (Tex.
App.—Amarillo Apr. 26, 2002, pet. ref’d) (evidence that showed appellant’s
repeated sexual assault for nine years in which appellant told victim if she told
anyone he would hurt her mother and that “things would be worse,” and he had
previously slapped victim, pulled her hair, and threatened to throw her from a car
was sufficient to show lack of consent).

      The testimony of a victim, standing alone, is sufficient to support a

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conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim.
App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d). Moreover, the jury is the sole judge of the credibility of the
witnesses at trial. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000); see
Hernandez v. State, 804 S.W.2d 168, 170 (Tex. App.—Houston [14th Dist.] 1991,
pet. ref’d) (stating “the jury had the ability to observe the witnesses carefully, to
hear the fear or violence projected from each witness, and to evaluate the
credibility of each witness and the overall sufficiency of the evidence on the issue
of consent”).

      In this case, the jury heard testimony that C.R. had been subjected to
repeated sexual abuse by her father for 12 years. When asked specifically whether
she consented to sexual intercourse with her father after she turned 17, C.R.
responded that she did not. C.R. also testified that after she turned 17:

           Appellant choked her when she threatened to report the abuse to her
             mother;

           Appellant used a video of the two of them engaging in intercourse to
             coerce her into continuing to engage in intercourse;

           Appellant bargained with C.R. stating he would stop the abuse if she
             would engage in certain acts with him; and

           Appellant threatened to kill her if she did not engage in sex with him.

Based on this evidence, a rational jury could have concluded that appellant
compelled C.R.’s submission or participation by threatening to use force or
violence See Tex. Penal Code § 22.011(b)(2).

      Appellant argues that C.R.’s admissions that while in middle school before
she knew it was inappropriate to have sexual intercourse with her father she would

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go to him to engage in intercourse, and that while in high school she undressed
herself, support his contention that he did not have notice of her lack of consent.
However, lack of consent is not an element of the offenses that occurred prior to
C.R. turning 17. See Tex. Penal Code § 22.011(a)(2).

      Viewing the evidence in the light most favorable to the verdict and resolving
all conflicts in the same light, the jury rationally could have concluded C.R. was
compelled to submit to, or participate in, sexual intercourse with appellant after she
turned 17 by his threats to use force or violence against her and her belief that he
had the present ability to execute those threats. We overrule appellant’s sole issue
and affirm the trial court’s judgment.


                                         /s/    Ken Wise
                                                Justice



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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