Ortega v. State

Do Not Publish

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-80783-2018

Before Justices Molberg, Nowell, and Goldstein

MEMORANDUM OPINION

ERIN A. NOWELL JUSTICE

A jury convicted Jabrice Davan Ortega of three counts of aggravated sexual assault of a child. In three issues, appellant argues the evidence is insufficient to support each charged offense and the trial court erred by allowing the State to abandon language from Counts I and II in the jury charge.^[1] In a single cross-issue, the State requests we modify the judgment on Count III to reflect the jury

2

affirmatively found appellant used or exhibited a deadly weapon in the commission of the assault. We modify the trial court's judgment on Count III and affirm as modified (appellate cause number 05-19-01503-CR). We affirm the trial court's judgments on Counts I and II (appellate cause numbers 05-19-01501-CR and 05-19-01502-CR).

FACTUAL BACKGROUND

T.D., the complainant, testified she met appellant when she was fourteen years old, and appellant knew her age. Appellant told her he was eighteen years old. T.D. thought appellant was "real cool."

On January 11, a few months after they met, appellant contacted T.D. through Snapchat because he wanted to take her to the McKinney Inn to "[b]eat my guts up," which meant to have sex. T.D. told appellant "no," but acquiesced after appellant threatened "to shoot at my house."

After arriving at the McKinney Inn, appellant taught T.D. how to smoke marijuana rolled inside of a cigar; appellant provided the marijuana and cigar. Smoking gave T.D. a headache, so appellant gave two pills to her, one was white and the other was yellow. She testified: "It was supposed to be Tylenol, but it wasn't Tylenol." After taking the pills, T.D.'s body began feeling numb and she felt the drugs were affecting her decision-making abilities. She testified: "I couldn't control myself." T.D. explained how appellant removed her clothing, put his tongue "in my

3

private area," penetrated her digitally, and penetrated her vagina with his penis. Afterward, they fell asleep.

When she awakened, T.D. called a friend to take her to school and the friend informed her that T.D.'s mother had contacted the police because T.D. was missing. When T.D. told appellant that her mom had called the police, appellant quickly got dressed. But before leaving the hotel room, "he pointed a gun to my face like this (indicating), and told me that if I said anything that he was going to kill me." She was scared because she thought appellant was going to kill her immediately. She described the gun as a black handgun.

A few weeks later, on February 14, T.D. was at Whataburger with a friend when she saw appellant. T.D. "took off running" because she feared appellant "was going to do something sexual." When T.D. stopped running, appellant caught up to her and asked if T.D. and her friend needed a ride. They got in the car with appellant, and T.D. testified she got into the car because she was scared and appellant frightened her. While in the car, T.D. saw the "same handgun that he threatened me at the hotel with." While appellant was not holding the gun, it was within his reach.

Appellant dropped off T.D.'s friend and then drove T.D. to an apartment parking lot. Appellant again provided marijuana to T.D., which they smoked. T.D. described how appellant told her to remove her pants before penetrating her vagina digitally and with his penis. After they both put their clothes on, appellant took T.D. home.

4

LAW &ANALYSIS

A. Sufficiency of the Evidence: Count III

In his first issue, appellant argues the evidence is insufficient to support his conviction for aggravated sexual assault of a child as alleged in Count III of the indictment because the State failed to prove he used and exhibited a deadly weapon, namely a handgun, in the course of the February 14 criminal episode. As applicable here, a person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child by any means and uses or exhibits a deadly weapon in the course of the same criminal episode. See TEX. PENAL CODE ANN. §22.021(A)(1)(B)(I), (A)(2)(A)(IV). "FOR purposes of aggravated sexual assault, a 'criminal episode' begins when the attacker in any way restricts the victim's freedom of movement and it ends with the final release or escape of the victim from the attacker's control." Brickley v. State, 623 S.W.3d 68, 75 (Tex. App.-Austin 2021, pet. ref'd) (quoting Yates v. State, 370 S.W.3d 772, 774 (Tex. App.-Texarkana 2012, pet. ref'd)). "[T]he use or exhibition of a weapon at any time during this period will elevate the crime to" aggravated sexual assault. Id. (quoting Burns v. State, 728 S.W.2d 114, 116 (Tex. App.- Houston [14th Dist.] 1987, pet. ref'd)). Accordingly, the evidence need not establish that the defendant used or exhibited the deadly weapon "during the actual sexual assault itself." Id. (quoting Yates, 370 S.W.3d at 774).

5

To evaluate the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443 U.S. 307 (1979); Turner v. State, 626 S.W.3d 88, 92 (Tex. App.- Dallas 2021, no pet.). "This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts." Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).

The February 14 criminal episode included T.D. being in appellant's car, T.D. seeing the handgun, and appellant sexually assaulting her. T.D. testified she was scared and seeing the gun made "my heart start racing." She believed the handgun was the same gun appellant held to her head when he threatened to kill her after he sexually assaulted her a few weeks earlier. Although appellant did not handle the gun during the February 14 criminal episode, the gun was accessible to him, and he displayed it in the car while T.D. was in the car.

Considering the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to show appellant exhibited the handgun, a deadly weapon, in the course of the February 14 criminal episode. A rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant's first issue.

6

B. Jury Charge

In his second issue, appellant argues the trial court erred by permitting the State to abandon language from the indictment. In Counts I and II, the State alleged appellant "administered and provided to the complainant a substance that was capable of impairing the complainant's ability to appraise the nature of the act and to resist the act, namely marijuana and pills described by the defendant as XO."

At trial, appellant's counsel moved for an instructed verdict of not guilty because the State failed to prove the portion of the indictment that states: "described by the defendant as XO." In response, the State argued that while "marijuana...