Chabrier v. State
| Decision Date | 14 November 2019 |
| Docket Number | NO. 03-18-00762-CR,03-18-00762-CR |
| Citation | 592 S.W.3d 188 |
| Parties | Alexander Ulysses CHABRIER, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Stacey M. Soule, Benjamin Gillis, for Appellee.
Amber Vazquez Bode, Austin, Carlos Garcia, Houston, for Appellant.
Before Chief Justice Rose, Justices Triana and Smith Affirmed
A jury convicted appellant Alexander Ulysses Chabrier of the offense of attempted sexual assault and assessed punishment at five years' imprisonment with a recommendation that imposition of the sentence be suspended. See Tex. Penal Code §§ 15.01(a), 22.011(a)(1). The district court rendered judgment on the verdict and placed Chabrier on community supervision for ten years. In two issues on appeal, Chabrier asserts that the district court erred in refusing to charge the jury on offensive-contact assault, which he contends is a lesser-included offense of sexual assault, and argues in the alternative that if offensive-contact assault is not a lesser-included offense of sexual assault, then trial counsel was ineffective in "planning his entire trial strategy around obtaining said charge." We will affirm the district court's judgment.
The State charged Chabrier with sexually assaulting H.H., a student at Texas State University. H.H. testified that on the night of August 19, 2015, she was watching a movie at her apartment with her roommate, Erin Ratcliffe, and Ratcliffe's friend, Chabrier. All three were drinking. At approximately 2:00 a.m., H.H. went to her bedroom and fell asleep. Later, she awoke with her pants and underwear pulled down to her knees, while Chabrier was touching her vagina with his fingers and "taking pictures" of her with his iPhone. H.H. demanded to see the photos, which were black and showed nothing visible. H.H. told Chabrier "to get rid of the pictures," and he deleted them. H.H. then told Chabrier repeatedly to leave her bedroom, while he begged her not to say anything to Ratcliffe. Chabrier left the bedroom eventually, and H.H., who was now sobbing uncontrollably, used her phone to call Ratcliffe for help. Shortly thereafter, Ratcliffe entered H.H.'s bedroom, was told by H.H. what Chabrier had done, and went into the living room to confront him. Ratcliffe testified that Chabrier " Chabrier then left the apartment.
Ratcliffe spoke further with H.H. after Chabrier left. Ratcliffe testified that her recollection of the conversation was "very hazy," but she recalled that H.H. had told her that "it was just an attempt—like, he had taken down or tried to pull off her pants and then maybe, like, touched her upper stomach, belly area and then [H.H.] woke up and was like, ‘No.’ " Later that morning, Ratcliffe took H.H. to the Hays County Jail, where H.H. was interviewed by Officer Dustin Slaughter of the San Marcos Police Department. H.H. told Officer Slaughter that she was not certain if Chabrier had penetrated her digitally, although she would later indicate in her written statement to the police, in a follow-up interview with another officer, and in her trial testimony that she had felt at least one of Chabrier's fingers inside her vagina.
Chabrier, who testified in his defense, characterized H.H.'s testimony as "absolutely false." Chabrier's version of events was that he had awakened that night needing to go to the bathroom, was "very disoriented and very drunk," and "stumbled" and "fell" into H.H.'s bedroom by mistake. Once inside H.H.'s room, Chabrier reached for his iPhone to turn on its "flashlight" feature but instead clicked accidentally on his phone's camera, resulting in the photos. He denied touching H.H. in any manner.
At the charge conference, defense counsel requested an instruction on the Class C misdemeanor offense of offensive-contact assault, which counsel argued was a lesser-included offense of sexual assault. The district court denied Chabrier's request but, on the State's request, included an instruction on the lesser-included offense of attempted sexual assault. The jury convicted Chabrier of the attempt offense. This appeal followed.
Lesser-included offense instruction
In his first issue, Chabrier asserts that he was entitled to an instruction on offensive-contact assault. He argues that it is a lesser-included offense of sexual assault as charged in the indictment and that the district court erred in concluding otherwise.
Standard of review
We review a trial court's refusal to give a requested instruction on a lesser-included offense using the same standard for charge error generally. See Braughton v. State , 569 S.W.3d 592, 613 (Tex. Crim. App. 2018) (). First, we determine if the trial court erred in refusing the request; if so, we then review the record to determine if the defendant was harmed by the error. See id. ; Almanza , 686 S.W.2d at 173–74 ; see also Arteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017) ; Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) ; Sweed v. State , 351 S.W.3d 63, 69–70 (Tex. Crim. App. 2011).
Analytical framework
"An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. art. 37.09(1). "Whether a defendant is entitled to a jury instruction on a lesser-included offense involves a two-step analysis." Safian v. State , 543 S.W.3d 216, 219 (Tex. Crim. App. 2018) (citing Rice v. State , 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) ). "The first step of the lesser-included-offense analysis asks ‘whether the lesser-included offense is included within the proof necessary to establish the offense charged.’ " Id. at 219–20. "This is a question of law, and it does not depend on the evidence to be produced at trial." Id. at 220.
"The second step of the lesser-included-offense analysis is to determine whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense." Id. "This is a fact determination and is based on the evidence presented at trial." State v. Meru , 414 S.W.3d 159, 163 (Tex. Crim. App. 2013). "If there is evidence that raises a fact issue of whether the defendant is guilty only of the lesser offense, an instruction on the lesser-included offense is warranted, regardless of whether the evidence is weak, impeached, or contradicted." Id.
This case concerns the first step of the analysis. In this step, "we employ the cognate-pleading approach adopted in Hall v. State , 225 S.W.3d 524 (Tex. Crim. App. 2007), which requires us to compare the elements of the greater offense as pled to the statutory elements of the potential lesser-included offense in the abstract." Ex parte Castillo , 469 S.W.3d 165, 169 (Tex. Crim. App. 2015). "[W]hen the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-included offenses.’ " Hall , 225 S.W.3d at 531. "An offense is a lesser-included offense of another offense ... if the indictment for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced." Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g).
"[T]he elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment." Meru , 414 S.W.3d at 162. "When there are allegations in the indictment that are not identical to the elements of the lesser offense, a court should apply the functional-equivalence test to determine whether elements of the lesser offense are functionally the same or less than those required to prove the charged offense." Safian , 543 S.W.3d at 220 (citing Cavazos v. State , 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) ). "An element of the lesser-included offense is functionally equivalent to an allegation in the charged greater offense if the statutory elements of the lesser offense can be deduced from the elements and descriptive averments in the indictment for the charged greater offense." Id. (citing McKithan v. State , 324 S.W.3d 582, 588–89 (Tex. Crim. App. 2010) ).
Comparing sexual assault as alleged in the indictment to offensive-contact assault
As alleged in the indictment, Chabrier was charged with intentionally or knowingly causing the penetration of H.H.'s sexual organ, by his finger or object unknown to the grand jury, without the consent of H.H.1 See Tex. Penal Code § 22.011(a)(1)(A). A person commits offensive-contact assault if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Id. § 22.01(a)(3). Chabrier asserts that the last element in offensive-contact assault—"the person knows or should reasonably believe that the other will regard the contact as offensive or provocative"—is functionally equivalent to the "without consent" element in the charged sexual-assault offense.
The district court, in concluding that offensive-contact assault was not a lesser-included offense of sexual assault, relied on this Court's opinion in Mathis v. State , 443 S.W.3d 391 (Tex. App.—Austin 2014, no pet.). In Mathis , this Court considered whether two types of assault—bodily-injury assault and offensive-contact assault2 —were lesser-included offenses of sexual assault. The defendant had been charged with intentionally or knowingly causing the penetration of the victim's...
To continue reading
Request your trial
-
Farrar v. State
...Farrar knew or reasonably believed Grace would regard his contact as offensive, that evidence is immaterial. See id.; cf. Chabrier v. State, 592 S.W.3d 188, 195 (Tex. App.—Austin 2019, no pet.) (because appellant could be guilty of penetrating the complainant's sexual organ without her cons......