Edwards v. State
| Decision Date | 09 January 2003 |
| Docket Number | No. 14-01-01144-CR.,No. 14-01-01143-CR.,14-01-01143-CR.,14-01-01144-CR. |
| Citation | 97 S.W.3d 279 |
| Parties | Michael Jerome EDWARDS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Joseph Salhab, Houston, for appellant.
Lori Deangelo Fix, Houston, for appellee.
Panel consists of Justices YATES, ANDERSON, and FROST.
MAJORITY OPINION
Following a jury trial, appellant was convicted of two crimes: improper sexual activity with a person in custody and sexual assault. In this consolidated appeal, appellant asserts ten points of error. We affirm.
In two separate causes, appellant was indicted for (1) the state jail felony offense of improper sexual activity with a person in custody; and (2) sexual assault. See TEX. PEN.CODE ANN. §§ 39.04(a)(2)1 and 22.011(a)(1)(B)2(Vernon 2002 and 1994). After a jury trial, appellant was found guilty of both offenses.
Judgment and sentence were rendered on October 5, 2001. Appellant was sentenced to two years' confinement in the Texas Department of Criminal Justice (TDCJ) State Jail Division for the offense of improper sexual activity with a person in custody, and to ten years' confinement in the TDCJ Institutional Division for the sexual assault offense.
Appellant filed notices of appeal on October 5, 2001 and a motion for new trial on November 1, 2001. Appellant's motion for new trial was overruled by operation of law.
The complainant was arrested in Corpus Christi, Texas, on an open warrant for theft charges filed against her in Harris County. After being in custody for fifteen days in Corpus Christi, she was transported to Houston in a van operated by Trans-Cor America. It was during this transport to Houston that the offenses for which appellant was convicted took place.
Although Houston is located only five hours from Corpus Christi, complainant's transport to Harris County took six days, involved more than eighteen stops, and resulted in her spending more than 114 hours in TransCor's control. Although TransCor policy mandates that female extradition agents accompany all female prisoners, none was assigned to complainant's van during her transport from Corpus Christi to Houston.
Initially there was a misunderstanding by TransCor drivers that complainant's warrant emanated out of Harrison County instead of Harris County. This resulted in complainant's spending 18 to 20 hours on the road the first day of her transport; first she was driven south to Texas' Valley area, then north to Belton, Texas. In Belton, complainant was left until a second transport vehicle could come to get her.
Although her trip from Corpus Christi to Belton was exhausting and uncomfortable, complainant raises no complaint against the first two TransCor drivers who transported her. She testified they behaved properly and were "nice people." When the next TransCor van came to pick up her up in Belton, however, it was operated by David Jackson and Michael Edwards, the appellant. It was during this portion of the trip that complainant testified she was sexually assaulted.
The TransCor van in which complainant was transported was divided into three areas. Female prisoners were confined in the middle section located behind the drivers' seats. A mesh screen separated them from the drivers; they were fed through two 8" × 8" "portholes" located in the screen.
All prisoners wore handcuffs and shackles around their ankles at all times except when using the restroom or overnighting at a correctional facility. Chains went from the prisoners' ankles to their handcuffs and around their waist, leaving just enough room to eat and drink. Complainant testified she could take only "baby steps" and could scratch her head only when she lowered it into her lap. One witness testified prisoners could lift their hands only "six inches from their stomachs, if that much."
The incident for which appellant was tried and convicted was for the rape of complainant on October 19, 1999. The sexual assault occurred in the TransCor van on Interstate 10 while Jackson was driving. According to complainant's and Jackson's testimony, shortly before arriving at the Harris County Jail in Houston, appellant got behind the driver's seat, reached through the food porthole into the female prisoners' compartment, pulled complainant by her chains and hair to the porthole, and forced her to perform oral sex on him. Appellant ejaculated into complainant's mouth and on her shirt.
At trial, the State's evidence included the testimony of complainant, Jackson, and two other prisoners who traveled with complainant and appellant during the fiveday trip from Belton.3
According to testimony admitted at trial, several factors contributed to complainant's fear of appellant and her state of mind during the assault: appellant insisted prisoners call him "boss man" throughout the trip; he did not allow talking among the prisoners; he used sexually explicit terms and fondled the female prisoners; and he terrorized complainant by forcing her to raise her shirt and bra to expose herself to other passengers and appellant. Appellant also reached into the female prisoners' compartment and penetrated complainant's vagina with his fingers, a flashlight, and handgun; he kept a shotgun on a rack above the female prisoners' heads; he conducted "screen tests" for entertainment, whereby he would slam on the van's brakes, forcing prisoners to hit their faces against the wire screens; and he intimidated and humiliated the women prisoners by illuminating their faces and exposed breasts at night with flashlights.
On one occasion, appellant and Jackson pulled their van over to the side of the road and told the prisoners they were going to undo their chains, force them to run, and shoot them for attempting to escape. On another occasion, appellant slid a bar of soap under a bathroom door and told complainant to "clean herself up for him." Appellant and Jackson also threatened everyone in the van with a gun and said that if anyone said anything, they would "take care of them" — which the prisoners interpreted to mean "kill them." Testimony indicates appellant and Jackson also threatened to use mace on the prisoners.
The witnesses testified that appellant and Jackson crossed the border into Mexico, got drunk, and visited prostitutes during the trip; they had beer, alcohol, and marijuana; and appellant told complainant he planned to visit a strip club in Houston and wanted her to "prepare" him sexually for the visit. Appellant also warned complainant that he "knew" people at the Harris County Jail who would treat her well if she was a "good girl" and cooperated with his demands.
Soon after the sexual assault, complainant arrived at the Harris County Jail and disclosed her attack to authorities. Evidence indicated she had a split lip. In addition, it was discovered that two pieces of evidence complainant had secreted away during the trip — a business card of Jackson's and a list of names of fellow prisoners who might serve as witnesses — were missing from her bag of personal belongings. Authorities found them in a trash can near the inmate processing area; the only persons with access to these items who could have thrown them away were appellant and Jackson.
Subsequent to appellant's arrest, complainant identified appellant in a line-up; investigators found semen stains on complainant's shirt that tested positive for complainant's and appellant's DNA; blood stains were found on her underwear; and samples of fluid taken from the floor of the van from behind the driver's seat tested positive for semen and appellant's DNA.
In appellant's first and second points of error — common to both appeals — appellant asserts (1) the evidence is insufficient to prove by a preponderance of the evidence that appellant's offense took place in Harris County, Texas; and (2) the trial court improperly denied appellant's objection to the State's argument that appellant's counsel was attempting to confuse the jury with the issue of venue.
In cause number 14-01-00143-CR — pertaining to appellant's conviction for improper sexual activity with a person in custody — appellant asserts the evidence is legally and factually insufficient to support a finding appellant was an employee of the Harris County Jail at the time of the offense.
In cause number 14-01-01144-CR — pertaining to appellant's conviction for sexual assault — appellant asserts the evidence was legally and factually insufficient to prove (1) appellant used physical force or violence against the complainant; and (2) appellant threatened to use physical force or violence against the complainant.
In his first point of error, appellant contends there was insufficient evidence to establish the offenses took place in Harris County, Texas.
As a general rule, venue is proper in the county where an alleged sexual offense takes place. TEX.CRIM. PROC CODE ANN. §§ 13.14 and 13.17 (Vernon 1977). The burden of proof is on the State to establish proper venue by a preponderance of the evidence. TEX.CRIM. PROC.CODE ANN. § 13.17 (Vernon 1977); Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App.1983); Peterson v. State, 659 S.W.2d 59, 61 (Tex. App.-Houston [14th Dist.] 1983, no pet.). Failure to prove venue in the county of prosecution is reversible error. See Black, 645 S.W.2d at 791. However, it is presumed that venue is proven in the trial court unless the record affirmatively shows otherwise or venue is made an issue at trial. See TEX.R.APP. P. 44.2(c)(1).
The trier of fact may make reasonable inferences from the evidence to decide the issue of venue. Bordman v. State, 56 S.W.3d 63, 70 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Evidence is sufficient to establish venue if "from the evidence the jury may reasonably...
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