                                         NO. 07-12-0059-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL B

                                      SEPTEMBER 7, 2012
                                ______________________________

                                           DANNY WILSON,

                                                                         Appellant

                                                    v.

                                       THE STATE OF TEXAS,

                                                             Appellee
                              _________________________________

                 FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2010-426,462; HON. JOHN J. MCCLENDON III, PRESIDING
                           _______________________________

                                     Memorandum Opinion
                               _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

        Danny Wilson (appellant) appeals his conviction for aggravated sexual assault.

Through a single issue, he contends that the trial court erred by failing to charge the jury

that the victim must not only have subjectively feared death or serious bodily injury but

also that her fear was reasonable under the circumstances.                We overrule the issue and

affirm the judgment.

                                            Background1

        The State indicted appellant for aggravated sexual assault via forcible sexual

assault, plus the placing of the victim “in fear that death or serious bodily injury would be

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         The following description of the evidence presented and circumstances arising at trial were taken
in large measure from appellant‟s own brief.
imminently inflicted on” her.   That the complainant was sexually assaulted when men

invaded her house is not in question.       The men numbered three. Furthermore, the

occurrence happened around midnight.

       At one point during the encounter the complainant activated her vehicle‟s alarm

system, but the intruders became angry and yelled at her to turn it off. According to her

testimony, the first intruder, identified at trial by her as appellant, “was „angry and mean

and intimidating‟ – he was wearing gloves, a bandana from the bridge of his nose to

below his chin and something covering his head; after refusing to tell the complainant

who he was, he told the complainant to disrobe and, when she had removed her outer

clothes, ripped off her bra and underpants with significant force, causing her physical

pain; told her more than once he was not going to rape her, but threw or pushed her

onto the floor, „punched her in her left cheek with a closed fist‟ and called her a bitch

when she tried to kick him off her; and sexually assaulted her anally and vaginally while

the second intruder held her down with his forearm.” When she screamed, “the second

attacker „put his hand over her mouth and told her to keep quiet and to chill out‟ – she

told him she „wasn‟t able to breathe, and that‟s when he kind of let loose a little bit, but‟

his hand „was still over my mouth.‟” While the DNA evidence reflected that the second

intruder had sexually assaulted her, “no DNA evidence existed to show the first attacker

– said to be [] appellant – had done so.” Later that night, the complainant‟s anus was

found torn, and “a police officer observed that the complainant‟s left cheek was „slightly

swollen,‟ but saw no ligature or choke marks around her neck.”

       The second intruder wore pantyhose over his head; “he asked the complainant

where her sister was – he evidently knew the sister‟s name – and when the complainant

answered that her sister was not there, the first individual told her she had „better not be
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lying.‟” When the first intruder had finished raping the complainant, “he pulled her „by

her ponytail over to the other side of the room‟ and into the bedroom, where the second

intruder vaginally penetrated her and made her perform oral sex on him, telling her ‟not

to bite it or he‟ would hurt her, while the first attacker continued to pull her hair.” The

third individual, “she believed, „was burglarizing the residence while all this was going

on.‟” “The first intruder then informed her that if she „ever told anybody,‟ but „he just left

it open-ended,‟ without making any hand gestures, just before all the attackers ran out –

she took his words to mean a threat on her life.” The complainant also testified that

during the attacks she was scared for her life. “She never felt she was not in danger –

she worried that the intruders would seriously injure her.” She gave no consent for the

intercourse.     “Nor, though, did she accuse the attackers of using ropes, tapes,

handcuffs or other binding instruments.”

       Before the guilt/innocence charge was read to the jury, defense counsel

submitted a proposed instruction on non-aggravated sexual assault as a lesser-included

offense; this was denied, as had been his motion for directed verdict on the same

general topic.

       According to appellant‟s brief, “[t]he abstract portion of the charge recited the

indictment, but then curiously stated that aggravated sexual assault is committed via

penetration without consent „if the person by acts or words occurring in the presence of

the victim threatens to cause the death, serious bodily injury, or kidnapping of the

person.‟”   Furthermore, according to appellant, “[t]he application paragraph stated

merely that the jury would find the appellant guilty of aggravated sexual assault if it

found penetration by physical force without consent, and that the appellant „by acts or



                                              3
words‟ placed the complainant „in fear that death or serious bodily injury would be

imminently inflicted on‟ her.”

       Argument

       According to appellant,

       Where a defendant does not object to an erroneous jury charge, reversal
       requires the presence of egregious harm, which may be shown via the
       deprivation of a valuable right. Here the indictment charged the appellant
       with aggravated sexual assault, but the jury charge omitted part of the
       requirement of the aggravating factor, and thus permitted the return of a
       guilty verdict without the additional requirement that the complainant‟s
       subjective fear of imminent death or serious bodily injury have been
       reasonable in light of the appellant‟s supposed actions. Since the
       appellant was convicted of aggravated sexual assault without jury
       consideration of the aggravating factor‟s true requirements, he has been
       deprived of a valuable right, necessitating a new trial.


We disagree.

       No one disputes that the standard of harm is one of egregiousness. That is, if we

were to find that the trial court was obligated to instruct the jury that to convict 1) the

victim feared death or substantial bodily injury while being raped by two individuals in

the dead of night while a third burglarized her abode and 2) her fear must be

reasonable, we could not reverse the judgment unless the omission caused egregious

harm. This is so because appellant did not complain of the omission. See Warner v.

State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (holding that the failure to instruct

the jury on a required matter when no one requested the instruction may be reversed

only when the omission caused egregious harm).

       We assume, arguendo, that the jury was to be instructed as suggested by

appellant. See Grunsfeld v. State, 813 S.W.3d 158, 162 (Tex. App.–Dallas 1991), aff’d,

843 S.W.2d 521 (Tex. Crim. App. 1992) (wherein the court stated that “[t]he jury is

                                            4
mandated to assay first if that state of fear in fact existed; the defendant‟s conduct is

then assessed to determine if it was the producing cause of such fear and whether the

subjective state of fear was reasonable in light of such conduct”). Nevertheless, we

conclude that the purported omission did not give rise to egregious harm.

      No rational juror could have legitimately questioned that the victim‟s fear of death

or serious bodily injury was reasonable. Three men invaded her home at night. One

burglarized the abode while two raped her. She sounded an alarm, which resulted in

her assailants becoming angry and yelling at her to deactivate it. They also struck her

in the face, held her down, covered her mouth, and uttered threatening words during the

event. Her anus was torn and face bruised. Nothing in the actions of her assailants

tended to suggest that she was anything other than utterly subjected to their whims. A

reasonable person could not have honestly concluded that the victim‟s subjective fear of

death or serious bodily injury was other than reasonable.

      There was no egregious harm here even if the trial court erred. So, the trial

court‟s judgment is affirmed.

                                                Brian Quinn
                                                Chief Justice


Do not publish.




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