      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00228-CR
                                        NO. 03-14-00229-CR



                                 Troy Luther Williams, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
                    NOS. D-1-DC-12-904077 & D-1-DC-12-904080
              HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 In two causes consolidated for trial, a jury convicted appellant Troy Luther Williams

of the offenses of aggravated kidnapping and aggravated sexual assault.1 The jury assessed

punishment at 60 years’ imprisonment for the aggravated-kidnapping offense and 85 years’

imprisonment for the aggravated-sexual-assault offense. The district court rendered judgment on

each verdict. In three points of error on appeal, Williams asserts that (1) the evidence is insufficient

to prove that he committed the offense of aggravated sexual assault; (2) the district court erred in

failing to instruct the jury on the defense of “voluntary release in a safe place,” which, when proven,

mitigates the punishment for the offense of aggravated kidnapping; and (3) the district court abused




       1
           See Tex. Penal Code §§ 20.04 (aggravated kidnapping), 22.021 (aggravated sexual assault).
its discretion in overruling Williams’s objection to the prosecutor’s argument regarding parole law.

We will affirm the judgments of conviction.


                                        BACKGROUND

               The jury heard evidence that on the morning of March 8, 2012, S.D., a 66-year-old

woman, was walking along a trail located at the Gus Garcia Recreation Center (“the Center”)

in Northeast Austin when she was approached from behind by a man. S.D. testified that the man

passed her and then “turned back” around and came “right up against [her], almost touching [her].”

At that point, S.D. recounted, she noticed that “his pants were unzipped and his penis was

completely out.” S.D. told the man to “zip up [his] pants and we’ll go on our way” and “nobody will

get in any trouble.” S.D. then “stepped back enough to go behind him and headed back toward[]

the [Center] across the field,” but, S.D. explained, she “was grabbed from behind and was being

very rapidly dragged down the trail towards the woods.” S.D. testified that a struggled ensued, with

the man “trying to pull [her] pants down [as she] was trying to hold them up, and [they] fought like

that for quite a while.” Eventually, S.D. testified, the man succeeded in pulling down her pants and

underwear. S.D. then screamed out for help, but the man covered her mouth with his hand, and told

her to stop yelling. When she did so, S.D. recalled, she “realized that his penis was thrusting very

hard against [her] vagina,” which prompted her to resume screaming. According to S.D., the man

eventually stopped thrusting, told her that he was “done,” and announced that he was going to kill

her. At that point, S.D. got up from off the ground, pulled up her pants and underwear, and noticed

that her car keys were missing. Assuming that the man had taken them from her pants pocket, S.D.

then “started trying to negotiate,” telling the man, “[I]f you give me back my keys, I can go to


                                                 2
Walmart and get some clean clothes so I can go on to work and nobody will know anything about

this.” S.D. testified that the man told her in response, “I’m from New Orleans, I’ve got two felonies

already and it won’t matter if I kill you.” S.D. then started walking away from the trail and toward

the Center, while the man “walked along beside” and “followed” her. Eventually, S.D. recounted,

the two of them reached the door of the Center, where S.D. again asked the man to “leave the keys”

on the ground and told him that “nothing is going to happen.” According to S.D., the man “put [the

keys] on the ground” and “turned around to leave again.” S.D. then attempted to open the door, but

it was locked, so she “tapped” on the door, hoping that someone inside would hear her. Instead, the

man heard her tapping, and, according to S.D., “he turned around and he said, you lied, you lied to

me, you were going to tell, and ran back and got the keys which were still on the ground. And then

I just started banging on the door and he went to my car.”

                S.D. further testified that she then ran away from the Center while the man tried,

unsuccessfully, to drive away in her car (according to S.D., “he got the car started, but he was

grinding the gears”). The man eventually called out to S.D., asking her to help him “get this thing

in gear or something like that.” Not wanting the man to escape, and thinking that she could “stall”

him until other people arrived, S.D. returned to the car, began talking to the man, pulled the car keys

from the ignition, and ran away again. S.D. testified that the man chased after her and “pushed [her]

from the side,” which caused her to drop the keys. The man then “grabbed the keys and ran back to

the car,” while S.D. ran across the street to the parking lot of a middle school. There, S.D. explained,

she encountered a school employee in his truck, used his phone to call the police, and then

waited at the truck until police arrived. As she was waiting, S.D. observed the man get out of her

car and walk away from the Center. That same morning, according to the evidence presented, a

                                                   3
man matching the description of S.D.’s assailant, later identified as Williams, was located and

apprehended by officers with the Austin Police Department.

               S.D. testified that, as a result of the assault, she “had cuts and bruises all over

[her] body and some burning from [her] vagina.” She was taken to a hospital, where she underwent

a sexual-assault examination. Julie Gibbs, the sexual-assault nurse examiner (SANE) who had

performed the examination, testified that S.D. had multiple lacerations on her face, broken blood

vessels on her back, and bruises and abrasions on various parts of her body. Gibbs also observed

injuries to S.D.’s vaginal area. Specifically, Gibbs testified that S.D.’s urethra “had a red and

irritated appearance” and that her perineum had “two small abrasions,” or breaks in the skin. Gibbs

also “noted a few red areas on the cervix, and then a little bit of blood that was there.” Sperm

samples were also obtained from S.D.’s vaginal area during the exam. The DNA analyst who tested

the samples, Sapana Pajapati, testified that Williams was excluded as a contributor to the sperm

that was found on the vaginal swabs but could not be excluded from the sperm that was found on

the labial swab. According to Pajapati, “The DNA profile from the sperm fraction of the labial

swab is consistent with the DNA profile of Troy Williams.” In other words, Pajapati explained,

Williams’s sperm was found on S.D.’s labia.

               Based on this and other evidence, which we discuss in more detail below as it is

relevant to Williams’s points of error, the jury found Williams guilty of both charged offenses and

assessed punishment as noted above. The district court rendered judgment on each verdict. These

appeals followed.




                                                4
                                             ANALYSIS

Sufficiency of the evidence

                In his first point of error, Williams asserts that the evidence is insufficient to prove

that he committed the offense of aggravated sexual assault. Specifically, he claims that the evidence

is insufficient to prove that he penetrated the victim.

                When reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence admitted in the light most favorable to the verdict to determine whether any

rational jury could have found the essential elements of the offense beyond a reasonable doubt.2 We

must consider all the evidence in the record, whether direct or circumstantial or properly or

improperly admitted.3 We assume that the jury resolved conflicts in the testimony, weighed the

evidence, and drew reasonable inferences in a manner that supports the verdict, and we defer to the

jury’s determinations of the witnesses’ credibility and the weight to be given their testimony.4

                A person commits the offense of aggravated sexual assault if he intentionally or

knowingly causes the penetration of the anus or sexual organ of another person by any means,

without that person’s consent, and commits one of several aggravating factors during the commission

of the assault.5 The only element of the offense that Williams challenges on appeal is penetration.




       2
           Jackson v. Virginia, 443 U.S. 307, 319 (1979).
       3
           Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
       4
         Jackson, 443 U.S. at 318-19; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010); Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04.
       5
           See Tex. Penal Code § 22.021.

                                                   5
                 Penetration is not defined in the penal code, but the Court of Criminal Appeals has

explained that “‘in common parlance, mere contact with the outside of an object does not amount

to a penetration of it.’”6 However, “‘pushing aside and reaching beneath a natural fold of skin into

an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond

mere external contact. Consequently, . . so long as contact with [the victim’s sexual organ] could

reasonably be regarded . . . as more intrusive than contact with her outer vaginal lips,’” penetration

occurs.7 This element of the offense “is satisfied by showing any penetration, no matter how slight.”8

Moreover, the statute “does not require penetration of the vagina, but rather criminalizes the broader

conduct of penetration of the ‘female sexual organ.’”9 Accordingly, “[p]enetration between the labia

of the female’s private parts by the male sexual organ of the defendant is sufficient although the

vagina was not entered or an act of intercourse was never completed.”10

                 In arguing that S.D. was not penetrated, Williams focuses on evidence in the

record tending to show that S.D. did not believe, after the assault had occurred, that Williams

had “penetrated” her. Specifically, in multiple statements to the police, S.D. had told officers that

no penetration had occurred. Also, during her testimony, S.D. explained that “from what [she]

       6
        Green v. State, __ S.W.3d ___, 2015 Tex. Crim. App. LEXIS 1405, at *16 (Tex. Crim.
App. Dec. 16, 2015) (quoting Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992)).
       7
            Id. (quoting Vernon, 841 S.W.2d at 409-10).
       8
         Sherbert v. State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976); Murphy v. State, 4 S.W.3d
926, 929 (Tex. App.—Waco 1999, pet. ref’d); see also Vizcarra v. State, No. 03-08-00189-CR,
2008 Tex. App. LEXIS 7491, at *17-18 (Tex. App.—Austin Aug. 28, 2008, no pet.) (mem. op.,
not designated for publication).
       9
            Villa v. State, 417 S.W.3d 455, 461 (Tex. Crim. App. 2013).
       10
            Sherbert, 531 S.W.2d at 637.

                                                  6
was aware of there wasn’t completed intercourse and ejaculation.” Williams also emphasizes the

evidence tending to show that his DNA was not found on the sperm that was recovered from

S.D.’s vagina. As for the evidence tending to show that his DNA was found on the sperm that was

recovered from S.D.’s labia, Williams claims that he could have ejaculated on S.D.’s legs and that

the sperm might have been transferred from her legs to her genital area when she pulled up her pants.

               Although the above evidence could support a finding that Williams did not

penetrate S.D., there is other evidence in the record that supports the jury’s finding to the contrary.

Specifically, S.D. testified that Williams pulled her pants down during the assault and that his “penis

was thrusting very hard against [her] vagina.” She later added on cross-examination that his “erect

penis was banging against” and “pushing against” her vagina. Moreover, S.D. also testified that she

felt “some burning” in her vaginal area following the assault, and the results of the SANE exam

tended to show that she had injuries to her vaginal area, including abrasions on her perineum, redness

and irritation on her urethra, and irritation and some bleeding in her cervix. Also, the evidence

tending to show that Williams’s sperm was found on S.D.’s labia, although not conclusive proof of

penetration, nevertheless supports the jury’s finding that penetration occurred, particularly when

considered in connection with the other evidence summarized above. Viewing this evidence in the

light most favorable to the verdict, we conclude that it is sufficient to prove that Williams’s contact

with S.D.’s sexual organ was “more intrusive than contact with her outer vaginal lips.”11

               We overrule Williams’s first point of error.




       11
          See, e.g., Villa, 417 S.W.3d at 462; Steadman v. State, 280 S.W.3d 242, 247-48
(Tex. Crim. App. 2009); Vernon, 841 S.W.2d at 409-10; Sherbert, 531 S.W.2d at 637.

                                                  7
Jury instruction on “voluntary release in a safe place”

                   The punishment level for aggravated kidnapping is reduced from a first-degree felony

to a second-degree felony if the kidnapper “voluntarily releases the victim in a safe place.”12

Williams requested a jury instruction on that issue in the court’s charge on punishment, and the

district court denied his request. In his second point of error, Williams asserts that the district court

erred in failing to instruct the jury on that issue.

                   The district court shall provide the jury with “a written charge distinctly setting

forth the law applicable to the case”13 The law applicable to the case includes “statutory defenses,

affirmative defenses, and justifications whenever they are raised by the evidence.”14 “[A] defense

is supported (or raised) by the evidence if there is some evidence, from any source, on each

element of the defense that, if believed by the jury, would support a rational inference that that

element is true.”15

                   “[W]e do not apply the usual rule of appellate deference to trial court rulings when

reviewing a trial court’s decision to deny a requested defensive instruction.”16 Instead, “we view

the evidence in the light most favorable to the defendant’s requested submission.”17 A defendant


        12
             See Tex. Penal Code § 20.04(c), (d).
        13
             Tex. Code Crim. Proc. art. 36.14.
        14
             Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).
        15
           Shaw v. State, 243 S.W.3d 647, 658-59 (Tex. Crim. App. 2007); see Tex. Penal Code
§ 2.03(c) (“The issue of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense.”).
        16
             Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
        17
             Id.

                                                       8
is entitled to a jury instruction on a defensive issue if it is raised by the evidence, regardless of the

strength or credibility of that evidence.18 On the other hand, if the evidence, viewed in the light

most favorable to the defendant, does not establish the defense, an instruction on that defense is

not required.19

                  To raise the issue of “voluntary release in a safe place,” there must be evidence that

the kidnapper actually “released” the victim, that the kidnapper released the victim “voluntarily,” and

that the kidnapper released the victim in a “safe place.”20 For there to be a “release,” there must be

evidence that the kidnapper “‘performed some overt and affirmative act that brings home to the

victim that he/she has been fully released from captivity.’”21 For the release to be “voluntary,” there

must be evidence that the release was not the result of intervention or action by others, such as rescue

by the police or escape by the victim.22 Finally, there must be evidence from which a rational jury

could reasonably infer that the location of the release was “safe” under the circumstances, such as

evidence relating to (1) the remoteness of the location, (2) the proximity of help, (3) the time of day,



        18
            See Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013) (citing Granger
v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)).
        19
             See id.
        20
          See Butcher v. State, 454 S.W.3d 13, 19 (Tex. Crim. App. 2015); Ballard v. State,
193 S.W.3d 916, 919 (Tex. Crim. App. 2006); Brown v. State, 98 S.W.3d 180, 183-88 (Tex. Crim.
App. 2003); West v. State, 406 S.W.3d 748, 766 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
        21
           Ex parte Chandler, 182 S.W.3d 350, 355 n.18 (Tex. Crim. App. 2005) (quoting Wiley
v. State, 820 S.W.2d 401, 411 (Tex. App.—Beaumont 1991, no pet.)); see Harrell v. State,
65 S.W.3d 768, 772 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
        22
         See Ballard, 193 S.W.3d at 919; Brown, 98 S.W.3d at 188; LaHood v. State, 171 S.W.3d
613, 624-25 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Oestrick v. State, 939 S.W.2d 232,
238-39 (Tex. App.—Austin 1997, pet. ref’d).

                                                    9
(4) the climate, (5) the condition of the complainant, (6) the character of the location and surrounding

neighborhood, and (7) the complainant’s familiarity with the location or neighborhood.23

                Viewed in the light most favorable to Williams, the evidence summarized above does

not establish that Williams ever “voluntarily released” S.D. Instead, the evidence shows that, after

Williams assaulted S.D., he “walked beside” her and “followed” her to the Center. And, once there,

Williams did not give S.D. her car keys and inform her that she was free to leave. Rather, he placed

her car keys on the ground and turned around. But, as soon as he heard S.D. knock on the door of

the Center in an attempt to get help, he told her that she had lied to him, picked up the keys, and

ran to her car. Then, as S.D. tried to run away from the Center, Williams called out to her and told

her to come to the car and help him start the engine. When S.D. returned to her car, she grabbed the

car keys from the ignition and ran away. Williams then chased her, pushed her, grabbed the keys,

and ran back to her car. There is no evidence in the record from which a reasonable fact-finder could

infer that, during this sequence of events, Williams performed an “overt and affirmative act that

[brought] home to the victim that she has been fully released from captivity.” At most, the above

evidence tends to show that Williams allowed S.D. to escape while he tried to get away in her car,

which does not constitute a “voluntary release” as that term has been defined by Texas courts.24




       23
            See Butcher, 454 S.W.3d at 19-20; West, 406 S.W.3d at 766-67.
       24
           See, e.g., Ballard, 193 S.W.3d at 919; Brown, 98 S.W.3d at 188; Dominguez v. State,
467 S.W.3d 521, 527-28 (Tex. App.—San Antonio 2015, pet. ref’d); West, 406 S.W.3d at 766-67;
LaHood, 171 S.W.3d at 624-25; Carreon v. State, 63 S.W.3d 37, 39-40 (Tex. App.—Texarkana
2001, pet. ref’d); Hernandez v. State, 10 S.W.3d 812, 822 (Tex. App.—Beaumont 2000, pet. ref’d);
Oestrick, 939 S.W.2d at 239.

                                                  10
Accordingly, on this record, we cannot conclude that the district court erred in denying Williams an

instruction on the issue.

               We overrule Williams’s second point of error.


Jury argument

               During the punishment phase of trial, the prosecutor made the following closing

argument regarding parole:


       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—


At that point, Williams objected on the ground that the prosecutor was instructing the jury on how to

apply parole rules to Williams’s sentence. The district court overruled the objection but admonished

the jury that “what the lawyers are arguing is not evidence” and that “the law is the charge that is

given to you and you will be guided by the charge.” The prosecutor then resumed her argument

as follows:


       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.




                                                    11
In his third point of error, Williams asserts that this was an improper jury argument and that the

district court should have sustained his objection to it.

               We review a trial court’s ruling on an objection to improper jury argument for abuse

of discretion.25 A trial court abuses its discretion when it acts arbitrarily or unreasonably, without

reference to any guiding rules and principles.26

               Proper jury argument generally falls within one of four areas: (1) summation of the

evidence, (2) reasonable deductions from the evidence, (3) answers to an argument of opposing

counsel, and (4) pleas for law enforcement.27 Additionally, it is well settled that proper jury

argument may also include restating, paraphrasing, and explaining the instructions contained in the

court’s charge.28

               Here, the court’s charge included the following instructions regarding parole:


       It is also possible that the length of time for which the defendant will be imprisoned
       might be reduced by the award of parole.




       25
         See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010); Nzewi v. State,
359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).
       26
         McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
       27
         Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Alejandro v. State,
493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
       28
          See, e.g., Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004); Whiting v. State,
797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Jones v. State, 641 S.W.2d 545, 550 (Tex. Crim. App.
1982); Campbell v. State, 492 S.W.2d 956, 957-58 (Tex. Crim. App. 1973); Spencer v. State,
460 S.W.3d 180, 185-86 (Tex. App.—Eastland 2015, pet. ref’d); Orsag v. State, 312 S.W.3d 105,
120 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

                                                   12
       Under the law applicable in this case, if the defendant is sentenced to a term of
       imprisonment, he will not become eligible for parole until the actual time served
       equals one-half of the sentence imposed, without consideration of any good conduct
       time he may earn. If the defendant is sentenced to a term of less than four years, he
       must serve at least two years before he is eligible for parole.

       Eligibility for parole does not guarantee that parole will be granted.

       It cannot accurately be predicted how the parole law and good conduct time 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 and parole
       authorities.

       You may consider the existence of the parole law and good conduct time. However,
       you are not to consider the extent to which good conduct time may be awarded to
       or forfeited by this particular defendant. You are not to consider the manner in which
       the parole law may be applied to this particular defendant.29


In Taylor v. State, the Court of Criminal Appeals held that when the charge contains the above

instructions regarding parole, it is proper for the prosecutor to explain “how the parole eligibility

rules set out in the charge work” with various sentences.30 In Taylor, the prosecutor made nearly

identical arguments to the arguments made by the prosecutor in this case.31 In concluding that the

arguments were proper, the Court of Criminal Appeals observed that the prosecutor’s arguments “did

not convey any information beyond what was properly contained in the charge.”32 Instead, “[t]he


       29
           These instructions track the statutory language regarding parole law. See Tex. Code Crim.
Proc. art. 37.07, § 4(a).
       30
            233 S.W.3d 356, 359 (Tex. Crim. App. 2007).
       31
            The prosecutor’s arguments in Taylor included the following: “[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.” 233 S.W.3d at 358.
       32
            Id. at 359.

                                                 13
explanation simply ensured that the jury understood the language set out in the instructions.”33 The

high court concluded that nothing in the record “indicates that the prosecutor’s explanations went

beyond an attempt to clarify the meaning of the jury instructions.”34 Following Taylor, we reach the

same conclusion here. On this record, we cannot conclude that the district court abused its discretion

in overruling Williams’s objection to the prosecutor’s arguments regarding parole.35

                  We overrule Williams’s third point of error.


                                           CONCLUSION

                  We affirm the judgment of conviction in each cause.



                                                __________________________________________

                                                Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: January 27, 2016

Do Not Publish




       33
            Id.
       34
            Id.
       35
          See id.; Spencer, 460 S.W.3d at 186-87; Waters v. State, 330 S.W.3d 368, 372-75
(Tex. App.—Fort Worth 2010, pet. ref’d); see also Castillo v. State, No. 03-08-00190-CR, 2009 Tex.
App. LEXIS 5470, at *9-13 (Tex. App.—Austin July 17, 2009, no pet.) (mem. op., not designated
for publication).

                                                  14
