Elliott v. State
| Decision Date | 14 April 1993 |
| Docket Number | No. 69760,69760 |
| Citation | 858 S.W.2d 478 |
| Parties | John William ELLIOTT, with alias', Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was indicted for the offense of murder committed in the course of kidnapping and aggravated sexual assault. Tex.Penal Code Ann. § 19.03(a)(2). The trial court authorized the jury to convict appellant under either theory, and submitted alternative verdict forms. On January 13, 1987, the jury found appellant guilty of murder in the course of aggravated sexual assault. At the punishment phase of trial the jury gave affirmative answers to special issues enumerated in Tex.Code Crim.Proc.Ann. art. 37.071 § (b), and appellant's punishment was assessed accordingly at death. Id., § (e). Appeal is automatic to this Court. Id., § (h).
In his first point of error appellant contends the evidence is insufficient to establish the State's theory of lack of consent to the sexual intercourse between appellant and the victim, Joyce Munguia. The State proceeded upon a theory of lack of consent, and the trial court defined the issue in the jury charge, exclusively in terms found in the sexual assault statute, Tex.Penal Code Ann. § 22.011(b)(3): "[a] sexual assault is without consent of the other person if the other person has not consented and the actor knows the other person is physically unable to resist." 1 Appellant alleges the evidence failed to show Munguia was "physically unable to resist" at the time of the purported sexual assault.
The record shows that in the early evening of Friday, June 13, 1986, at about 6:30 p.m., Munguia was on her way to a bus stop when she was beckoned over to join a group of young men gathered around the tailgate of a pickup truck parked in the driveway of the Elizondo residence, at 2808 Gonzales, in Austin. Among those in the group were Ricky Elizondo, Pete Ramirez, Danny Hanson and appellant. Over the course of the next three hours Munguia drank anywhere from three to six beers, took "a big drink" of Everclear from a shared bottle, and ingested an undisclosed quantity of cocaine.
Both Hanson and Elizondo testified for the State. Their accounts are somewhat different, and we will summarize them separately. According to Hanson, Munguia was upset because, as she reported, her boyfriend was seeing his ex-wife again behind her back. Hanson consoled her in the backyard. Elizondo came back and asked Munguia if she would like to wash her face inside, and they went in the house. A short time later, appellant and Ramirez followed them inside, with Hanson close behind. There they found the bathroom door locked. Back outside, appellant and Hanson could see through the bathroom window that Elizondo "was kissing" Munguia. Elizondo's brother got a coat hanger, and appellant opened the door to the bathroom. Hanson related that "when we opened the door, [Munguia] was on her knees in front of [Elizondo] and [Elizondo] was zipping his pants up." Hanson thought that Elizondo and Munguia had been engaging in "probably oral sex[,]" but speculated that "maybe [Elizondo] tried to get her to do something but she--maybe she didn't want to."
All the men then went back outside, followed shortly by Munguia, who asked Hanson to walk her home. Hanson could tell Munguia was drunk "[b]ecause she was crying and her words were slurred, couldn't understand her that good, and she was kind of walking like she couldn't walk too good." Hanson testified:
A ... we started walking on Gonzales, headed east.
Q Okay, and were you by yourself, just the two of you?
A Yes.
Q Did she have trouble walking at that time?
A Yes.
Q So where were--what did ya'll do?
A We were walking, and then she--she told me that [Elizondo] wouldn't leave her alone when they were in the house, and then we were walking along on the street and she was crying.
And then [appellant] caught up to us and told me he was going to help me walk her home, and I told him just to go back, that I could do it, and then he told me that I just wanted her all for myself, and I told him, no, that I was just going to walk her home because she was drunk.
Q And then what happened?
A And then she almost passed out. It seemed like she was going to fall down and [appellant] picked her up, and I kept telling him to put her down, to let me walk her home, and he took her under the bridge.
Q Now, you say that she almost passed out. How could you tell?
A Because she--it was like she was going to fall down and [appellant] caught her.
Q And how did he pick her up?
A He put his legs under her--I mean his arms under her legs and picked her up.
Q Did you help him do this?
A No.
Q Now, where were you on Gonzales Street?
A We were about three or four houses down from the Elizondo's house.
Q And where did you go? Or where did he take her?
A Under the bridge, into some wooded area.
Q Was it dark under there?
A Yes.
Appellant stood Munguia up and began to remove her shorts and panties. Hanson asked appellant to "let her go, to let me take her home, and that's when he said that he was going to kick my ass or he was going to hit me or something." At about this moment Elizondo and Ramirez arrived. Munguia was "crying, she was asking me to help her, to take her home." Appellant laid her down on her back in the grass and began to have sex with her. Munguia Hanson watched as, after appellant, first Ramirez and then Elizondo had sex with Munguia, and all the while "she kept on calling me to help her[.]"
Q And then what happened?
A And then she yelled out that she was going to go straight to the police when they were done.
Q And what--as best you can remember what was it that she said?
A She said--she said, I'm going to go straight to the police when ya'll get through.
Q And what condition was she in at that time?
A She was still a little drunk. When they were raping her, she couldn't fight them off. It was like she couldn't even move.
Q Was she still crying?
A Yes.
Q Did she ever stop crying?
A No.
Q Did she ever stop calling you, your name, and asking you for help?
A No.
Q So what happened then after she said she was going to call the police?
A Then I noticed [appellant] and [Elizondo] were--stood on one side, and I remember hearing [appellant] say, We're going to have to get rid of her.
Q And then what happened?
A And then [Ramirez] ran off to his truck and [appellant] ran off to [Elizondo's] house.
Still on the ground, Munguia asked Hanson to help her find her clothes. Hanson picked them up and began to hand them to her, but Elizondo "grabbed them out of my hand and threw them away." He then looked at Hanson and told him, "You too, Danny." At this, Hanson fled to call the police.
On cross-examination, defense counsel questioned Hanson about the moment at which appellant had lifted Munguia and carried her under the bridge, and the following exchange occurred:
Q It's not like she was passing out at the time. You might say she would be unstable on her feet, but she was able to stand there.
A Well, she was saying--she was telling me to take her home.
Q Okay.
A And if she really wanted to go, it looks like she would have got away from him, and I think if he would have let her go, she would have fell.
Q The fact of the matter is that she didn't try to pull away or really offer any resistance at all; is that true?
A Right. She couldn't. I think she was too drunk to.
Q Okay, we'll talk about that in a minute. I want to get this straight, that she never, I don't know, fought back or anything like that.
She pretty much just allowed [appellant] to do what he wanted and what you're saying is it's because she was too drunk to do anything else. Is that what you're saying?
A Right, but she kept saying for him to stop.
* * * * * *
Q And likewise, when he got on top of her, she didn't offer any resistance to him like that or to [Elizondo] or to [Ramirez] either.
You felt she was too intoxicated to, I understand, but the fact is that she didn't offer any kind of resistance at all; is that true.
A Right.
Shortly thereafter, the following colloquy took place:
Q Now, you're saying the reason that [Munguia] couldn't put up any resistance at all was because she was intoxicated. Is that what it was?
A Yes.
Q Now, honestly, if she had wanted to fight some, it's not like she was passing out the entire time or something like that. If she had wanted to struggle or wanted to resist some, she could have struggled; isn't that true?
A I guess so.
Q Okay. I mean, everybody knows--I guess what you're saying is--what you're saying is that she was so drunk that it would have been easy to overcome her resistance.
Is that what you're saying--
A Yes.
Q --is that she was so drunk--she could have struggled some if she would have wanted to, but because she was so drunk, anyone could have managed to overcome that resistance. Is that what you're really saying?
A Yes.
Q Okay, so it's not that she wasn't capable--not like it was physically impossible to resist, it's just that she was real drunk and she didn't resist; is that true?
A Yes.
* * * * * *
Q ... It's just that under all the circumstances, she didn't resist at all, even though she may have been able to; is that true?
A Right.
* * * * * *
Q ... [W]as she still on the ground when you left then?
A Yes.
Q Okay, so you don't know if she was able to stand back up at that point or not?
A No, I don't.
Q Okay. Is there any reason why you would think that she was too drunk to stand back up?
A No.
Elizondo's testimony coincided with Hanson's in general outline, with differences in detail. He...
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