Nguyen v. State, No. 03-07-00017-CR (Tex. App. 9/10/2009)

Decision Date10 September 2009
Docket NumberNo. 03-07-00017-CR.,03-07-00017-CR.
PartiesTHANH LONG NGUYEN, Appellant, v. THE STATE OF TEXAS, Appellee.
CourtTexas Court of Appeals

Appeal from the District Court of Travis County, 299th Judicial District, No. D-1-DC2004301555, Honorable Jon N. Wisser, Judge Presiding.

Reformed and, as Reformed, Affirmed.

Before Justices PATTERSON, PEMBERTON and ONION.*

MEMORANDUM OPINION

JOHN F. ONION, Jr., Justice.

Appellant Thanh Long Nguyen appeals his third-degree felony conviction for attempted sexual assault. See Tex. Penal Code Ann. § 15.01(a) (West 2003), § 22.01(a)(1)(c) (West Supp. 2008). After the waiver of trial by jury, appellant entered a plea of not guilty before the trial court to the indictment charging sexual assault. The trial court found appellant guilty of the lesser-included offense and assessed punishment at ten years' imprisonment. The trial court, however, suspended the imposition of the sentence and placed appellant on community supervision subject to certain conditions.

POINTS OF ERROR

Appellant advances two separate points of error challenging the legal and factual sufficiency of the evidence to sustain the conviction.

PROCEDURAL BACKGROUND

Before discussing the facts and the sufficiency of the evidence, we will consider appellant's challenge to the validity of the amendment to the indictment and its possible impact on the sufficiency issues.

On April 16, 2005, the indictment containing two paragraphs was presented by the grand jury. The first alleged that Thanh Long Nguyen on or about July 20, 2005:

did intentionally and knowingly cause the sexual organ of another person, namely Lawrence Evans, to contact and penetrate the mouth of Thanh Long Nguyen without the consent of Lawrence Evans in that Lawrence Evans had not consented and Thanh Long Nguyen knew that Lawrence Evans was unaware that sexual assault was occurring.

The second paragraph also alleged the date of July 20, 2005, and tracked the first paragraph in charging sexual assault except as to the allegations as to type of consent that was lacking. It alleged that Evans did not consent "in that Thanh Long Nguyen compelled Lawrence Evans to submit and participate by the use of physical force."1

An examination of the date alleged, July 20, 2005, reveals a date to occur after the presentment of the indictment on April 16, 2005. The State later filed a motion to amend the indictment on June 13, 2006. See Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006).

The motion simply requested that the indictment be amended in three ways. The first two ways concerned changing the date alleged in each of the two paragraphs of the indictment to July 20, 2004. The third way sought to add a third paragraph to the indictment alleging that on or about July 20, 2004, appellant "did intentionally and knowingly cause the sexual organ of Lawrence Evans to contact or penetrate the mouth of Thanh Long Nguyen without the consent of Lawrence Evans and Thanh Long Nguyen knew Lawrence Evans was unconscious or physically unable to resist."

On the same day the motion was filed, the trial court simply granted the motion. No further action was taken to amend the indictment after the trial court's order. The indictment was not altered on its face by interlineation or otherwise, nor was a document incorporating the new charging instrument filed in the record. All we have in this record is the authorization (motion and order) for action that was never taken.

The Texas Court of Criminal Appeals has held that neither the State's motion to amend the indictment nor the trial court's order granting the motion is an amendment. The two (motion and order) comprise only the authorization for the eventual amendment of the charging instrument pursuant to article 28.10. Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1993). The court required that, for an amendment to the indictment to be effective, the indictment itself must be physically altered; the amendment being the actual alteration of the charging instrument. Id.

After some eight years, the holding in Ward was expanded in Riney v. State, 28 S.W.3d 561, 568 (Tex. Crim. App. 2000). In Riney, it was held that the physical interlineation of the original indictment on its face is not the only means of effecting an amendment to the indictment, modifying Ward's strict requirement. Now, an indictment may be amended by interlineation on the face of the charging instrument, or by incorporating into the trial court's file a separate document with the text of the amended charging language. Id; Barfield v. State, 202 S.W.3d 912, 919 (Tex. App.-Texarkana 2006, pet. ref'd); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex. App.-Tyler 2005, no pet.); Aguilera v. State, 75 S.W.3d 60, 62 (Tex. App.-San Antonio 2002, pet. ref'd); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.-Fort Worth 2001, no pet.).

Here, as noted, after the authorization of the amendment, no action was taken to actually amend the original indictment by interlineation nor was any document incorporated into the trial court's file to show a proper amendment as required.

The State argues that appellant did not object to the proposed amendment of the indictment. Assuming that appellant had notice of the motion to amend2 and did not object to the trial court's brief order, the indictment itself was never legally amended. It is the responsibility of the State to properly amend the charging instrument. Serna v. State, 69 S.W.3d 377, 381 (Tex. App.-El Paso 2002, no pet.). Here, the State failed to properly amend the indictment. Therefore, the original indictment remained the indictment of record. Id.

As a result, there is no third paragraph to be considered in any challenge to the sufficiency of the evidence. Moreover, the impossible dates remained in the indictment. Despite the merits of appellant's procedural concerns, the failed amendment has little impact on this appeal. Appellant candidly concedes that he did not timely object pretrial to the original indictment and waived any defect as to form or substance as to the dates alleged. See Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990). Appellant urges that despite the waiver, the State was still required to prove the date of the offense as anterior to the presentment of the indictment and not so remote to be barred by the statute of limitations. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (West 2000). Appellant acknowledges that the State met its burden of proof in this cause.3

FACTUAL BACKGROUND

The complainant, Lawrence Evans,4 a seventeen-year-old high school student, and a resident of another undisclosed state, was in Austin in July 2004, attending an American Ballet Theater's month-long summer dance program at the University of Texas.

On July 20, 2004, Evans injured his back while performing an aerial lift of a dance partner. Evans wanted to see a doctor or go to a hospital for his back pain. A "liaison" between the university and the dance program, Lucretia Faust, decided that he needed a "massage treatment." Evans had never had a massage.

Faust drove Evans to a massage therapist, whom she seemed to know. Evans found the therapist's office to be in a rather "seedy looking" apartment complex. Evans was uncomfortable, but being unfamiliar with message therapy, he did not say anything to Faust. Evans was introduced to appellant by Faust and he identified appellant at trial.

Appellant led Evans to a massage table in a large room and told him to remove as much of his clothing as he "was comfortable with." Evans stripped to his boxer shorts and laid down on the table. He told appellant that the pain was in his back. Appellant began to knead Evans's back with oil and his hands. Faust remained in a nearby room.

Appellant moved to massage Evans's shoulders, his arms, and hands, which Evans found strange as the pain was in his back, but he did not know what to expect. Appellant had Evans move onto his side and then onto his back with his face up. When appellant began to massage an inner thigh, Evans told appellant to focus on his back.

Appellant then removed a pillow case from a pillow and placed the pillow case over Evans's face so Evans could not see. Evans recounted:

And then at one point—it happened very quickly—he reached his hand into the opening of my boxers. It felt—I couldn't see but it felt like he pulled back my—my foreskin and began giving oral sex.

Evans explained that he was "startled" and "froze," and "he didn't know how to react." Evans told appellant to stop and he did. The massage, elsewhere on the body, continued for a minute or two. Appellant then told Evans that Evans was "tense" and Evans agreed. Appellant apologized that "this hasn't been a great massage experience." Appellant left the room, and Evans dressed.

On cross-examination, Evans, testifying almost two years after the event, was uncertain whether appellant had removed Evans's penis from his boxer shorts nor how long he remained silent while appellant attempted or actually performed oral sex on him. He was repeatedly asked how long appellant performed oral sex on him before he told appellant to stop. Evans never offered any specific time. Evans stated that he thought he was at appellant's office to receive "medical help" for his back, had never previously had a massage, and when the sexual contact occurred, he "was scared for [his] safety." He didn't know what the situation was and was concerned about sexual diseases. Evans stated that he did not want sexual contact with appellant and that he never discussed anything of a sexual nature with appellant. Evans made clear that he did not consent to the sexual contact by appellant. Evans admitted that under the circumstances, he did not call out to Faust in the next room.

Before leaving the building where the incident occurred, the...

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