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Brown v. State

Court of Appeals of Texas, Fourteenth District

July 18, 2019


          On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1554409

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan



         Appellant Marvin Dayvon Brown appeals his conviction for sexual assault. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon 2018). He challenges his conviction based on alleged jury-charge error and the trial court's admission of improper opinion testimony. We affirm.


         Appellant was charged with sexual assault of 19-year old Complainant, K.N. A six-day jury trial was held. At trial, Houston Police Officer Kirk Wong testified that he drove his patrol car down Fuqua Street around 1:00 a.m. on July 17, 2015, when he was flagged down by a man driving an 18-wheeler truck. As soon as Officer Wong parked his car, Complainant jumped out of the passenger side of the truck and ran towards him. Complainant was naked and only had a bra on; she was crying, scared, panicked, and distressed. She "grabbed onto" Officer Wong and yelled "rape, rape" and "help, rape."

         The truck driver, M. Wenzel, also walked to Officer Wong, holding Complainant's clothes. Wenzel told Officer Wong that he first saw Complainant talking to someone in another vehicle before she jumped into the passenger side of his truck. Officer Wong gave Complainant her clothes and placed her in his patrol car. Officer Wong was talking to Wenzel when Appellant approached them. Appellant was detained at the time because he matched "for the most part" Complainant's description of the black man whom Complainant claimed had raped her. Officer Wong testified that as soon as Complainant saw Appellant "right away, boom, it's like a switch lit up. She started screaming. Her eyes opened up. Her pupils dilated. She was frantic, crying, screaming, 'That's him. Get away from me. Get away. Get away.'"

         Officer Wong calmed down Complainant and talked to Appellant, who claimed that Complainant asked him for help and he tried to help her. Appellant told Officer Wong that Complainant "was taking her clothes off while she was with him, and he was just trying to help her out, but then she got scared and started yelling rape and ran away from him." When Officer Wong asked Appellant if he raped her or "touch her at all," Appellant answered he "never at any point tried to rape her or have any sexual intercourse." Appellant told Officer Wong that he was homeless and was sleeping when Complainant approached him. Appellant told Officer Wong that he tried to calm Complainant down because "she was freaking out so much," but Appellant never said "anything about having sex with her, or trying to have sex with her."

         Officer Wong testified that Complainant was very intoxicated and scared and that it was difficult to communicate with her. About 30 minutes after Complainant initially identified Appellant at the scene as the man who raped her, Officer Wong conducted a show-up identification. He brought Appellant to Complainant to make sure he "got a solid description" and asked Complainant if Appellant was the man who raped her. Complainant responded, "No, I don't know who that is." According to Officer Wong, Complainant described her attacker as wearing a green shirt and having dreadlocks. Officer Wong acknowledged that Appellant did not "completely" match Complainant's description because Appellant did not have dreadlocks but had a "short little afro."

         Wenzel also testified at trial. He stated that he saw a vehicle stopped in the road and Complainant trying to talk to someone in that vehicle. As he came closer, the vehicle took off and Complainant came "straight at" his truck forcing him to stop, Complainant was wearing only a bra and was crying, screaming, and scared. Complainant asked Wenzel to call 911 and tried to get into his truck. Appellant, wearing a green shirt and jeans, walked up to his truck. Immediately after seeing Appellant, Complainant climbed into his truck's passenger seat. Complainant was more scared after Appellant came to the truck and yelled, "Call 911." Appellant handed Wenzel Complainant's shorts and shirt; stated Complainant is crazy; and immediately walked away. While Wenzel called 911, he saw Officer Wong's patrol car and got him to stop. Wenzel spoke to Officer Wong and handed him Complainant's clothes. As Wenzel talked to Officer Wong, Appellant walked up to the scene.

         The jury also heard Complainant's testimony. She stated that she went to a bar to celebrate her friend's birthday earlier in the evening. After having several drinks, Complainant and her friend went to Complainant's ex-boyfriend's house. There, Complainant got into an argument with her friend because Complainant found out her friend and ex-boyfriend "were a thing." Complainant left angry and had no plan where to go next. She sat down on a curb behind a building and cried. Complainant testified that a black man approached her and asked if she "was okay." When Complainant replied she was "fine," the man told her "Sex can make everything okay. You can feel better after we have sex."

         Complainant continued to fight and eventually managed to get away from the man. She saw the 18-wheeler truck and ran to ask Wenzel for help. She had no recollection of climbing into his truck even though he told her not to. Complainant remembered talking to Officer Wong and telling him what had happened to her and that she had been raped. Complainant testified she identified Appellant at the scene and told the police, "That's the guy that raped me. That's him." She testified that she does not remember seeing Appellant again after her initial identification.

         Complainant testified that she was taken to the hospital by ambulance but left before being examined because she did not feel attended to. She later went to the hospital with her sister and was examined. Complainant stated that a nurse performed a SANE exam (sexual assault nurse examiner). After the exam, Houston Police Officer Melanie Smith interviewed Complainant. She took photos of Complainant. The photos showed Complainant had scrapes and injuries on her neck, arms, and legs.

         Officer Smith also testified at trial. She stated that she talked to Complainant at the hospital in the morning of July 17, 2015. Complainant had a lot of injuries on her body, "was crying and hysterical." Complainant told Officer Smith about the assault the night before and that her scratches were from fighting and being held down by the neck on the pavement. After the interview, Officer Smith went to the scene of the assault to look for evidence.

         Officer Smith encountered Appellant at the scene; she noticed that Appellant wore jeans and a "green and blue T-shirt" just as Complainant had described to her. He told Officer Smith that "[h]e was homeless and sleeping in the loading dock when a girl came up crying and messed up, out of her mind. She was leaning on him and telling him to hold her and asked, 'If I was going to rape her.'" Officer Smith also testified Appellant told her that "'[Complainant] started taking her clothes off and freaking out. She ran over to a guy in an 18-wheeler and got in his truck. I walked over to talk to the guy, but she screamed, and I told him - she screamed and told him that I raped her. That's when I saw her running over to the police. I walked over to them and gave them her clothes. I did not touch that girl. I'll give y'all DNA, or whatever you want." Officer Smith then took a sample of Appellant's DNA-a buccal swab.

         Clay Davis from the Houston Forensic Science Center testified that he conducted a Y-STR analysis, which only looks at the Y chromosome profile of a DNA sample. This analysis was done after a comparison was made between Appellant's DNA from the buccal swab and a sperm fraction that was developed from Complainant's anal swab collected at the hospital. Davis testified that Appellant could not be excluded as a contributor to the sperm fraction developed from Complainant's anal swabs.

         Finally, the jury heard from Houston Police Officer John Barnes who was assigned to investigate the sexual assault. The first time Officer Barnes spoke with Appellant, he stated he did not have sex with Complainant, but Officer Barnes told Appellant to "wait for the DNA to come back" to "see what that says." Later, Appellant continued to inquire about the case and showed an "absolute interest in the sexual assault kit," but claimed "he never had any sexual contact with" Complainant.

         During one phone conversation, Officer Barnes told Appellant that he would be charged with sexual assault if he claimed he did not have sexual contact with Complainant and "the sexual assault kit came back, panties, whatever we have, says there's semen on there." Officer Barnes also asked Appellant if he "tried to have sex with her and she freaked out and ran off, and he denied that." After that phone conversation, Appellant sent Officer Barnes a lengthy email, in which he conveyed his version of events: (1) Complainant approached him; (2) she was "extremely drunk;" (3) Complainant's "knees were bruised and her shorts were near her knees;" (4) she was crying and told Appellant she wanted him to hold her and take care of her which he "thought she was giving [him] consent for sex;" (5) Complainant started shouting, when he tried to "insert [him]self inside her;" and (6) he "never made penetration" and immediately let Complainant go.

         After Officer Barnes received the email, he contacted Appellant and requested to speak with him in person. Officer Barnes interviewed Appellant and a recording of the 30-minute interview was played for the jury. The jury could hear Appellant's version of events in his own words and that he repeatedly claimed that no one ever asked him if he attempted to rape Complainant. Appellant essentially repeated what he had already sent to Officer Barnes in the email.

         After hearing all the evidence, the jury found Appellant guilty of sexual assault. The jury assessed punishment at ten years' confinement but recommended the trial court suspend the sentence for ten years. Following the jury's recommendation, the trial court sentenced appellant to ten years' confinement with the sentence suspended for ten years. Appellant filed a timely appeal.

         Analysis I. Alleged Charge Error

         Appellant argues in his first issue that the trial court erroneously submitted a jury "instruction on non-consent by threat" because there is no evidence of a threat in this case. Appellant argues this error caused him harm and requires reversal and a new trial.

The jury charge stated:
A person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means, ...

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