Appeal from the 228th District Court Harris County, Texas
Trial Court Cause No. 1554409
consists of Chief Justice Frost and Justices Zimmerer and
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.
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
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.'"
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."
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."
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.
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."
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.
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.
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.
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.
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.
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.
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
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.
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.
I. Alleged Charge Error
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, ...