Court of Appeals of Texas, First District, Houston
[Copyrighted Material Omitted]
On Appeal from the 209th District Court, Harris County, Texas. Trial Court Case No. 1307334.
For APPELLANT: Ken Goode, Houston, TX.
For STATE: Devon Anderson, District Attorney -- Harris County, Houston, TX; Jessica Akins, Assistant District Attorney, Harris County, Texas, Houston, TX; Connie Spence, Sara Mickelson, Assistant District Attorney, Harris County, Texas, Houston, TX.
Rebeca Huddle, Justice.
Appellant Tomas Jimenez was charged by indictment with aggravated sexual assault of an elderly person. The jury found Jimenez guilty and he was sentenced to eighteen years' confinement. On appeal, Jimenez argues that the trial court erred in (1) refusing to submit the lesser-included offenses of indecent exposure and attempted aggravated sexual assault, (2) denying his motion to quash the indictment, and (3) submitting a mandatory presumption regarding lack of consent and refusing to submit the Texas Penal Code section 2.05 instruction regarding presumptions. We affirm.
Jimenez, a janitor at Seven Acres Nursing Home, was charged with intentionally and knowingly causing the penetration of the mouth of the complainant, a person 65 years of age or older, with his sexual organ, and without her consent.
The complainant was a resident of Seven Acres Nursing Home. On the day of the incident, Rita Ekome, the certified nursing assistant (CNA) at Seven Acres, entered the complainant's room to serve the complainant lunch. Ekome testified that she found Jimenez in the complainant's room when she arrived. Jimenez was standing in front of the complainant--who was sitting on the bed--with his penis inside the complainant's mouth. Ekome testified that Jimenez's penis was hard, and that he was moving back and forth with his eyes closed. Because his eyes were closed, Jimenez did not immediately realize that Ekome had entered the room. After Ekome made a noise, Jimenez opened his eyes and immediately put his penis back in his pants.
Ekome immediately notified her supervisor and brought her back to the complainant's room, at which point they heard the complainant say " It's my husband, it's my husband." Jimenez had not left the floor when Ekome returned with her supervisor;
he was buffing the floor in the hallway outside of the complainant's room. Seven Acres management convened a meeting in which Jimenez's supervisor told him that Ekome reported seeing Jimenez with his penis in the complainant's mouth. Jimenez responded " no, I was scratching," and pointed to his pelvic area.
A medical exam of the complainant revealed no injuries, bruises, pubic hair, or semen on her body. Swabs for DNA were taken from the crotch area of Jimenez's underwear and from the complainant's mouth. A Houston Police Department Crime Laboratory DNA analyst testified that the only DNA found in the complainant's mouth was her own. She also testified that when testing the swab from Jimenez's underwear for a DNA profile, the laboratory obtained a mixture of at least two individuals, and one of the individuals was male and one was " consistent with" the complainant's DNA. The analyst testified that Jimenez " cannot be excluded to the major component of this mixture" and the complainant " could also not be excluded as a possible contributor to the mixture."
On cross-examination, the analyst testified that she could not say with certainty that the complainant's DNA was contained in the mixture and the complainant's DNA profile would occur in 1 in 610,000 people. The analyst testified that she could not determine whether the source of the other DNA found in Jimenez's underwear was sweat, urine, or saliva. The analyst testified that she could not give a timeframe for when the DNA attributed to Jimenez was deposited and it was possible that Jimenez's portion was not deposited at the same time as the other DNA. The analyst also testified that someone could deposit another person's DNA to his own crotch area if he had the other person's DNA on his hand from touching something that contained that person's DNA.
At the time of the incident, the complainant was 84 years old and was married to a man who was not Jimenez. The complainant had Alzheimer's dementia and lived in the nursing home's secured unit for residents with moderate to severe dementia. Access to the unit was restricted and was limited to those who could enter a secure pass code on a keypad at the entry points.
Jimenez's supervisor testified that Jimenez completed special training to work in this unit, that he had a special code to access it, and that Jimenez worked almost exclusively in the unit, which was on the second floor. Jimenez had worked at the nursing home for approximately three years before the incident.
The nursing home's medical director testified that in her medical opinion, the complainant was not capable of appraising the nature of acts in 2010 because " her dementia had progressed to more of a severe state." The complainant's daughter also testified that the complainant was " extremely forgetful" and did not " make a lot of sense" when having conversations, but she recognized her husband when he visited her.
Jimenez filed a pretrial motion to quash the indictment, arguing that its first paragraph was unconstitutional. The indictment's first paragraph stated that sexual assault occurred:
(1) without the Complainant's consent, namely the Defendant was an employee of a NURSING HOME, namely Seven Acres, where the Complainant was a resident, and the Complainant and Defendant were not married to each other;
The first paragraph tracked the definition of " without consent" set forth in section 22.011(b)(11) of the Texas Penal Code, which states that a sexual assault is without consent if:
The actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
Tex. Penal Code Ann. § 22.011(b)(11) (West 2011).
Jimenez argued that section 22.011(b)(11) violates the presumption of innocence and relieves the State of the burden to prove the assault was without consent. Counsel argued that section 22.011(b)(11)
pretty much guarantees guilt and it's a conclusive presumption, in our opinion, establishing an element of crime that there wasn't consent. It's presumed there wasn't consent just by the fact that he's an employee there and she's a resident there unless they're married. And our objection is it violates due process and that statute is unconstitutional . . .
The trial court denied the motion to quash.
At the charge conference, Jimenez again argued that section 22.011(b)(11) constituted a " conclusive" presumption on the consent issue that violated due process and objected to its inclusion in the charge. The trial court overruled Jimenez's objection and his request that the charge include an instruction pursuant to section 2.05(a) of the Code of Criminal Procedure " to inform the jury how to deal with [the] presumption." The trial court also denied Jimenez's request to instruct the jury on the lesser-included offenses of attempted aggravated sexual assault and indecent exposure.
During closing, Jimenez's counsel argued that there was reasonable doubt about whether Jimenez committed the sexual assault as described by the CNA. He argued that Jimenez's medical records showed Jimenez was unable to achieve and maintain an erection, and that this undermined Ekome's claim that Jimenez's penis was erect during the alleged assault. He argued that no physical evidence indicated a sexual assault occurred, because Jimenez's DNA was not found in the complainant's mouth. He also pointed out that Jimenez did not flee or otherwise exhibit consciousness of guilt. Thus, Jimenez's defensive theory was to deny that the assault occurred; Jimenez's counsel never suggested that the incident was consensual.
In his first and second points of error, Jimenez argues that the trial court erred in refusing to submit two lesser-included offenses--indecent exposure and attempted aggravated sexual assault.
A. Applicable Law
An offense qualifies as a lesser-included offense of the charged offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest ...