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Chabrier v. State

Court of Appeals of Texas, Third District, Austin

November 14, 2019

Alexander Ulysses Chabrier, Appellant
v.
The State of Texas, Appellee

          FROM THE 274TH DISTRICT COURT OF HAYS COUNTY NO. CR-16-0606, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Smith

          OPINION

          Gisela D. Triana, Justice

         A jury convicted appellant Alexander Ulysses Chabrier of the offense of attempted sexual assault and assessed punishment at five years' imprisonment with a recommendation that imposition of the sentence be suspended. See Tex. Penal Code §§ 15.01(a), 22.011(a)(1). The district court rendered judgment on the verdict and placed Chabrier on community supervision for ten years. In two issues on appeal, Chabrier asserts that the district court erred in refusing to charge the jury on offensive-contact assault, which he contends is a lesser-included offense of sexual assault, and argues in the alternative that if offensive-contact assault is not a lesser-included offense of sexual assault, then trial counsel was ineffective in "planning his entire trial strategy around obtaining said charge." We will affirm the district court's judgment.

         BACKGROUND

         The State charged Chabrier with sexually assaulting H.H., a student at Texas State University. H.H. testified that on the night of August 19, 2015, she was watching a movie at her apartment with her roommate, Erin Ratcliffe, and Ratcliffe's friend, Chabrier. All three were drinking. At approximately 2:00 a.m., H.H. went to her bedroom and fell asleep. Later, she awoke with her pants and underwear pulled down to her knees, while Chabrier was touching her vagina with his fingers and "taking pictures" of her with his iPhone. H.H. demanded to see the photos, which were black and showed nothing visible. H.H. told Chabrier "to get rid of the pictures," and he deleted them. H.H. then told Chabrier repeatedly to leave her bedroom, while he begged her not to say anything to Ratcliffe. Chabrier left the bedroom eventually, and H.H., who was now sobbing uncontrollably, used her phone to call Ratcliffe for help. Shortly thereafter, Ratcliffe entered H.H.'s bedroom, was told by H.H. what Chabrier had done, and went into the living room to confront him. Ratcliffe testified that Chabrier "apologized profusely and kept on saying, 'I'm sorry. I'm sorry. I'm drunk.'" Chabrier then left the apartment.

         Ratcliffe spoke further with H.H. after Chabrier left. Ratcliffe testified that her recollection of the conversation was "very hazy," but she recalled that H.H. had told her that "it was just an attempt-like, he had taken down or tried to pull off her pants and then maybe, like, touched her upper stomach, belly area and then [H.H.] woke up and was like, 'No.'" Later that morning, Ratcliffe took H.H. to the Hays County Jail, where H.H. was interviewed by Officer Dustin Slaughter of the San Marcos Police Department. H.H. told Officer Slaughter that she was not certain if Chabrier had penetrated her digitally, although she would later indicate in her written statement to the police, in a follow-up interview with another officer, and in her trial testimony that she had felt at least one of Chabrier's fingers inside her vagina.

         Chabrier, who testified in his defense, characterized H.H.'s testimony as "absolutely false." Chabrier's version of events was that he had awakened that night needing to go to the bathroom, was "very disoriented and very drunk," and "stumbled" and "fell" into H.H.'s bedroom by mistake. Once inside H.H.'s room, Chabrier reached for his iPhone to turn on its "flashlight" feature but instead clicked accidentally on his phone's camera, resulting in the photos. He denied touching H.H. in any manner.

         At the charge conference, defense counsel requested an instruction on the Class C misdemeanor offense of offensive-contact assault, which counsel argued was a lesser-included offense of sexual assault. The district court denied Chabrier's request but, on the State's request, included an instruction on the lesser-included offense of attempted sexual assault. The jury convicted Chabrier of the attempt offense. This appeal followed.

         ANALYSIS

         Lesser-included offense instruction

         In his first issue, Chabrier asserts that he was entitled to an instruction on offensive-contact assault. He argues that it is a lesser-included offense of sexual assault as charged in the indictment and that the district court erred in concluding otherwise.

         Standard of review

         We review a trial court's refusal to give a requested instruction on a lesser-included offense using the same standard for charge error generally. See Braughton v. State, 569 S.W.3d 592, 613 (Tex. Crim. App. 2018) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). First, we determine if the trial court erred in refusing the request; if so, we then review the record to determine if the defendant was harmed by the error. See id.; Almanza, 686 S.W.2d at 173-74; see also Arteaga v. State, 521 S.W.3d 329, ...


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