### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00741- CR

Evere tt Rainey, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 201 1-0 19, H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Evere tt Rainey g uilty of ag g rava ted sexual assault. See Tex. Penal Code Ann. § 22.021 (West 2011). The jury assessed punishment a t ten y ear s’ conf inement. Rainey raises three issues on appea l: (1) there is a materia l varia nce betwee n the offe nse alleg ed in the indictment and the offe nse proven at trial; (2) the trial court err ed in submitt ing a jury char g e that allowed the jury to convict him wi t h o u t fi n ding that all of the require d elements wer e met; and (3) the trial court err ed in instructing the jury on the law of parties. We will aff irm the judgme nt of the trial cour

t.

BACK GR OUND The fac tual backg round of this case is d i s cu s s ed i n this Court’s prior opinion in Miranda v. State , __ S.W .3d __, 03-11-00469- CR, 2012 WL 6761523, at *1–2 (Tex. App.—AustinDec

. 28, 2012, pet. filed), and will not be fully repe ated here

. We discuss the backg round details of

this assault only

as nec essar

y to addre ss the issues raised by Rainey in this appeal. Fifte en-y ear -old K. B. wa s picked up at her house by J ohnny L ozano and J oshua J ackson and driven to Rainey ’s home. L o zano and J ackson enter ed Rainey ’s home while K.B

. 1 waited in the c ar. L ozano soon returne d and asked K .B. to join them in the home. K.B . ag ree d to

acc ompany him, and once inside, she observe d five males in the home, including L ozano, J ackson, Rainey , Ang el Miranda, and Pedro Quintero. All five of the males wer e sevente en y ear s old at the time. Soon afte r K.B

. arr ived, L ozano asked eac h of the other males, including Rainey , to speak w ith him one at a ti me i n the back room. Duringthese c onversa tions, K.B. re mained in the living room with the other three males, and she did not know what L ozano and the other males wer e discussing. L ozano subsequently made K.B. severa l alcoholic drinks. L ater that evening , Rainey “rolled” a marijuana cig are tte and sug g ested that the g roup smo k e it in his closet. K.B ., Rainey , L ozano, Miranda, and Quintero went to Rainey ’s closet while J ackson rema ined “passe d out on the couch.” After the g roup ente red the closet, one of the m ales “turned the lights off.” I t was at this point that the sex ual assault of K .B. be g an.

K.B

. initially felt Loz an o ’s hand rubbing her back and bott om, then L ozano beg an to kiss her neck. Suddenly , K.B

. felt another set of hands touching her. K.B

. would later testify that she attempted to push the hands awa y , but beca

use she was heavily intox icated, she was never able
to defe nd herse lf. Then, one of the assailants g rabbe d her head and forc ed his male sexual org an into

We refe r to the complaina nt by her initials to protect he r identity

. 1 2her mouth. Whil e this was occur ring , other assailants pulled down K.B .’s pants and beg an inserting their fing ers into he r fema le sexual org an. Eventually , the assailants pushed K.B

. out of the closet and forc ed her on to the bed. As K.B

. tried to g et up, Quintero and another assailant pushed her back down. The assailants took turns forc ing K.B. to perf orm oral, vag inal, and anal sex, often on two assailants at the same time.

K.B

. beg an to drift in and out of consciousness during the assault. Whil e she could

rec all cer tain assailants forc ing her to perf orm various sexual acts, she could not specific ally rec all Rainey perf

orming a discre t e act of penetr ation. Howeve r, K.B

. testified that when she beg an 2 throwing up, Rainey said “Someone take that bitch to the bathroom. I don’t want to have to clean that up.” Rainey

also took pictures of the assault on his cell phone as i t was occurr ing. K.B

. also

rec alled that all of the assailants, including Rainey , wer e laug hing throug hout the assault, and at no point did any

of them try

to assist her or discour ag e the other assailants. After the assault was complete, the assailants told K.B

. to put her clothes back on and
t h en t h ey forc ed her back into L ozano’s car . L ozano drove K.B. back to her home while J ackson attempted to f

orce K.B . to perfor

m oral sex in the back sea t. K.B. stumbled into he r home around 4:00 a.m. She curle d up on a cha ir and fe ll asleep.

That m orning , K.B

. told her mother about t he assault as outlined above

. That day , K. B. wa s examined by a sexual assault nurse who obtained oral, vag inal, and anal swabs fr o m K.B . as we ll as swabs from her brea sts. The nurse took pictures of K .B.’ s bruised ey e and injure d

K.B

. did testify that at one point Rainey and L ozano wer e behind her and one of them was 2 forc ing her to perf

orm vag inal intercour se, but beca use she could not turn her head she was not sure which assa ilant it was. 3shoulder. There was bruising and tear ing in K.B .’s vag inal, anal, and perine al are as, and her g enital

are a wa s so swollen that the nurse c ould not perfor m an interna l examination. S ubsequent testing

reve aled that DNA rec overe d from K.B .’s swabs and h er clothing matched the DNA of L ozano, Miranda, J ackson, and Quintero. Rainey ’s DNA did not match any of the DNA rec overe d from K.B

.

Rainey was indicted for five counts of ag g rava ted sexual assault for what could commonly be ref

err ed to as “g ang rape .” See Tex. Penal Code Ann. § 22.021(a) (2)( A)(v) (West 2011). Eac h count alleg ed that Rainey sexually assaulted K.B

. throug h various forms of penetr ation, with the ag g rava ting element that he acte d in conce rt with another assailant who also sex u ally assaulted K.B. “during the course of the s ame criminal episode.” See id. The jury found R ainey 3 g uilty of Count V—pene trating K.B .’s mouth with his sexual org an—but found him not g uilty on the

rema ining four counts. See supra n.3. The jury assessed punishment a t te n y ear s’ imprisonment. 4 This appea l followed.

DISCUSSIO N

Rainey raises three issues on appea l. First, he claims that there is a materia l varia nce betwee n the indictment and the evidenc e adduce d at trial. Second, he asser ts the trial court err ed in

Count I alleg ed that Rainey penetr ated K.B.’s anus with his male sex ual orga n, Count I I 3 alleg ed that he penetr ated her anus with his fing ers, Count I I I alleg ed that he penetr ated her fema le sexual org an with his male sexual org an, Count I V alleg ed that he penetr ated her fema le sexual org an with his fing ers, and Count V alleg ed that he penetr ated her mouth with his male sexual org an. See Tex. Penal Code Ann. § 22.021(a) (1)( A)(i) –(iii) (West 2011) (def ining anal, oral, and vag inal sexual assault); see also Gonzales v. State , 304 S.W .3d 838, 846-849 (Tex. Crim. App. 2010) (conc luding oral, va g inal, and ana l penetra tion are se para te and distinct sexual assaults under sec tion 22.021). Given that the jury found Rainey g uilty only of Count V, we will addre ss Rainey ’s issues 4 on appea l only

as they rela te to that count. 4submitt ing a jury char g e that allowed him to be convicted of ag g rava ted sexual assault on the theory

that he was a party to sexual assault. Third, Rainey arg ues that t h e trial court err ed in submitt ing

a jury char g e that allowed him to be convicted of ag g rava ted sexual a ssault on a theory not alleg ed in the indictment. We addre ss the materia l varia nce issue first and then the two alleg ed err ors in the jury char g e.

Variance bet ween in dictm ent and evidence at tr ial

I n his first issue on appea l, Rainey claims that there is a material varia nce betwee n the offe nse alleg ed in the indictment and the evidenc e adduce d at trial. Specifica lly , he asser ts that the indictment alleg es that the “pre dicate,” or underly ing sexual assault, involved the penetr ation of K.B .’s mouth by his sexual org an, while the evidenc e adduce d at trial established that K.B .’s mouth

was penetr ated by the sexual org an of one of the other assailants. The State disputes this point and

aver s that based on the totality of the evidenc e, the jury could have rea sonably conclude d that Rainey penetr ated K.B .’s mouth with his sexual org an. Howeve r, beca use none of the testimony or the fore nsic evidenc e direc tly or circ umstantially indicates that Rainey pene t ra t ed K.B .’s mouth with his sexual org an, we assume without deciding that Rainey ’s conviction is supported, if at all, on the theory that he wa s a p arty to the ag g rava ted sexual assault. See Tex. Penal Code Ann. § 7.01(a) (West 2011) (“A person is responsible as a party to an offe nse if the offe nse is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.”). The indictment alleg es, in rele vant par t, that:

EVERETT COL E RAI

NEY, De fenda

nt, on or about the 5th day of April, 2009, in Caldwell County , Texas, did then and there
5intentionally and knowing ly cau s e the penetr ation of the mouth of [K.B.] by the sex u al org an of said Def endant, EVERETT COL E RAI NEY, witho u t t h e co nsent of said [K.B.]

. . . and during the course of the same criminal episode, the said Def endant, EVERETT COL E RAI

NEY, acte d in conce rt with another actor , or actor s, to wit: [L ozano, Quintero, J ackson, and Miranda], who [also sex u al ly assaulted K.B .] . . . .

“A ‘var iance ’ occur s whene ver there is a discrepa ncy between the alleg ations in the indictment and the proof offe red at trial.” Byrd v. State , 336 S.W .3d 242, 246 (Tex. Crim. App. 2011) (citing Gollihar v. State , 46 S.W .3d 243, 246 (Tex. Crim. App. 2001)). Howeve r, a varia nce is materia l—and thus reve rsible err or—only if it “fa ils to g ive the defe ndant sufficie nt notice [of the offe nse alleg ed] or would not bar a second pr osecution for

the same” crime. See id. at 247–48. I t is w ell established that the indictment need not “ include notice that the State will a ttempt to prove its case under the law of parties.” See Marable v. State , 85 S.W .3d 287, 292 (Tex. Crim. App. 2002) (Cochra n, J ., concur

ring ) (interna l citations omitted); see also Powell v. State , 194 S.W .3d 503, 506 ( T e x. Cr im

. A

p p . 2 0 0 6 ) ( u

n a n im o u s o p in io n c it in g M

a r a b le , 8 5 S. W. 3 d a

t 2 8 8 , f o r s a me p r o p o s it io n )

. Thus, an acc used may be convicted as a party to the offe nse even if the indictment does not expli citly char g e him as a party
. See Bos t o n v. S t a t e , 373 S.W .3d 832, 837 (Tex. App.—Austin 2012, pet. g rante d) (citing Marable , 85 S.W .3d at 288). There fore , althoug h the evidenc e at trial that Rainey

was a party to the ag g rava ted sexual as s au l t d o es not mirror the alleg ations contained in the indictment, this di ffe renc e does not c onstitut e a ma terial va rianc e. See id. Neve rtheless, Rainey asser ts that beca

use the indictment alleg es that his sexual org an p en et ra t ed K.B.’s mouth, it was a materia l varia nce for the State to prove that K.B .’s mouth was actua lly penetr ated by the s exual org an of one of the other assailants. Acc ording to Rainey , if the
6State wanted to provide adequate notice that the predic ate sexual assault may have involved

penetr ation by one of the other assailants’ sexual org ans, the ind i ct m en t should have descr ibed the sexual org an i n m o re g ener al terms. Rainey does not cite to any authority direc tly on point, 5

n o r d o es he distinguish this case from the well-e stablished prec edent that the law of parties n ee d
not be alleg ed in the indictment. See id. Rather, he appea rs to arg ue that the indi ct ment must provide notice of whose se x ual org an wa s used in a sexual assault.

I n support of this proposition, Rainey relies on, among other things, the co u rt of

cr i minal appea ls’ opinion in Byrd v. State , 336 S.W .3d 242, 246–47 (Tex. Crim. App. 2011). I n Byrd , the court held that there was a materia l varia nce betwee n the indictment, which alleg ed
t hat the defe ndant stole proper ty from a named store owner , and the evidenc e adduce d at tri al , which showed that the stolen proper ty belong ed to Walmart rathe r than the named store owner . See 336 S.W .3 d at 2 5 7

– 5 8

. I n illust rating the differ ence betwee n materia l and immaterial varia nces, t h e court used the example of a hy pothetical indictment which alleg ed that a defe ndant kille d “Da ng erous Da

n McGre w,” but the e vidence showed that he in f act killed “ L ittle Ne ll.” See id. at 246–47. The court explained that “[m] urder may be murder, but killing one person is not the same offe nse as killing a

n entirely differ ent per son.” Id. I n this ca se, Rainey asser ts that if “murde ring Dang erous Dan McGre w is not the

same as murdering L ittle Nell, it follows that Dang erous Dan’ s sexual org an is no t L i t t l e Nell’s

Rainey provides the following examples of how the indictment could have appropr iately 5 ref err ed to the sexual org an used in the predic ate sexual a ssault: (1) “the se x ual org an of [Rainey , L ozano, Quintero, J ackson, and Miranda]”; (2) “the co-a ctor’s sexu al o rga n ”; or (3) “an actor ’s sexual orga

n.” 7sexual org an.” We take Rainey ’s arg ument to me an that penetr ation of K.B .’s mouth by one of the

other assailant’s sexual org ans is not the same offe nse as alleg ed in the indictment. See Tex. Penal Code Ann. § 22.021(a) (1)( A)(ii). This a rg ument misconstrues both the law of parties as it a pplies to ag g rava

ted sexual assault, as well as the rationale underly ing Byrd

. Under the l aw of parties, the defe ndant i s culpable only if the S tate p ro ves t hat t he p rincipal actor committed the char g ed offe nse, and the defe ndant encour ag ed, direc ted, aided, o r attempted to aid that offe nse. See id. §§ 7.01–.02(a) (2); see also McI ntosh v. State , 52 S.W .3d 196, 200 (Tex. Crim. App. 2001) (conc luding defe n d an t co uld be g uilty as party to “eng ag ing in org anized criminal activity ” if State proved defe ndant aided a conspirator who per formed all elements of offe nse). I n this case , Rainey would be g uilty as a party to ag g rava ted sexual assault if he encour ag ed, direc ted, aided, or attempted to aid an assailant who, as the principal actor , penetr ated K.B .’s m outh with his sex ual org an, while that assailant worked i n conce rt with another who also committed sexual assault. See Tex. Penal Code Ann. §§ 7.01, 22.021; see also Miranda , 2012 WL 6761523 at *5 (e x plaining la w of pa rties applica tion to gangrape ). Under Rainey ’s interpre tation, a defe ndant could be g uilty as a party to sexual assault by oral penetr ation only if the principal actor somehow used the defe ndant’s sexual org an to penetr ate the mouth of the victim. T his asser tion nece ssarily leads to the result that a defe ndant
cannot be g uilty as a party to sexual assault by oral penetr ation. There is nothing in the lang uag e of the penal code to indicate that “par ty liability is i n ap p ro p ri ate” with respe ct to ag g rava ted sexual assault by oral pe netra tion. See McIntosh , 52 S.W .3d at 200 (noting that nothing in section 71.02 of penal code indicate s d ef en d ant cannot be convicted of org anized criminal activity under law

8of parties)

. Thus, R ainey ’s arg ument that the indictment indicates that he could be liable only if

his sexual org an penetr ated K.B .’s mouth is inconsistent with the lang uag e of the ag gra v at ed sexual assault statute and the law of parties. See id. ; see also Tex. Penal C o d e Ann. §§ 7.01, 22.021(a) (1)( A)(ii).

There fore , this case is clea rly distinguishable from the analy sis in Byrd

. 336 S.W .3d
at 257–58. Byrd involved a varia nce in the identity o f t h e v ictim such that the defe ndant did
not have no t i ce o f whose proper ty he alleg edly stole, while this case at most involves a varia nce betwee n whether Rainey is liable as a principal actor o r p ar t y t o ag g rava ted sexual assault. Cf. 336 S.W .3d at 257–58. Nothing in the court’s opinion in Byrd can rea sonably be interpre ted to alter the established prec edent that party liability need not be alleg ed in the indictment. See id. ; see also Powell , 194 S.W .3d at 506.

I t is clea r t hat R ainey ’s l iability as a party to the offe nse nec essar ily require d proof that another assailant’s sex ual orga n penetr ated K.B.’s mouth. Given t h at an indi ctment does not need to provide notice that the State may prove its case under t h e l aw of parties, see Powell , 194 S.W .3d at 506, there is no rea son why the indictment needs to provide notice that the law of parties a s applied to the charg ed off ense ne cessa

rily involved the use of a

nother a ssailant’s sexual org an. Thus, Rainey was not deprive d of notice that under this char g e of ag g rava ted sexual assault by oral penetr ation, the Stat e could prove that another assailant’s sexual org an penetr ated K.B .’s mouth. There fore , we conclude that the complained of varia nce, if any , is immaterial. We overr ule Rainey ’s first issue on appe al.

9Alleged er ror in jury c harge I n his second and third issues on appea l, R ainey arg ues that the trial court err ed in its c harg e to the jury

. Specifica lly , Rainey asser ts that the jury char g e improperly allowed the jury
to (1) convict him of ag g rava ted sexual assault on the theory that he was a party to sexual assault and (2) convict him on a theory not alleg ed in the indictment. We will addre ss eac h alleg ed jury -cha rg e

err or sepa rate ly

. Standard of review

The purpose of the jury char g e is to inform the jury of the applicable law and g uide them in its application to the case . See Hutch v. State , 922 S.W .2d 166, 170 (Tex. Crim. App. 1996). The jury char g e must allow the jury to de termine the defe ndant’s g uilt in light of the evidenc e and the law. Id. Absent evidenc e to the contra ry , we presume the jury followed the law provided in the char g e. Id. Our revie w of an alleg ed err or in a jury char g e involves a two-step inquiry

. First, we deter mine whether there is indeed error in the jury

char g e. Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005)). Second, assuming that err or exis ted, we deter mine whether the defe ndant proper ly prese rved the err or at trial. Id. at 350 (citing Alma n z a v. S t a t e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’ g )). I f the err or was proper ly prese rved, reve rsal is require d if there is “some harm” to the def en d an t
. Almanza , 686 S.W .2d at 171. However, if the err or wa s not properly prese rved, the err or must be “funda mental,” meaning that it was “so eg reg ious and cre ated such harm that the defe ndant ‘has not

10had a fair and impartial trial.’” Barrios , 283 S.W .3d at 350 (quoting Almanza , 686 S.W .2d at 171);

see also Frost v. State , 25 S.W .3d 395, 399 n.6 (Tex. App.—Austin 2000, no pet.) (explaining that
cate g ories of fund am en t al err or l isted in Cumbie v. Stat e , 578 S.W .2d 732, 733–34, are still valid afte r Almanza , 686 S.W .2d at 171). Party to the lesser offense

I n his se cond issue on appea l, Ra iney claims that the jury char g e allowe d him to be

co n v i ct ed of ag g rava ted sexual assault based on an invalid theory that he was a party to sexua l assault. See Tex. Penal Code Ann. §§ 7.01 (def ining party to offe nse), 22.011 (d ef i n i n g s exual

as s au l t ), .021 (def

ining ag g rava ted sexual assault) (West 2011). Acc ording to Rainey , the j u ry char g e implied that if he was a party to a sexual assault committed by one of the other assailants, the jury could c o n v ic t h im o f a g g r a v a te d s e xu a l a s s a

u lt

. S e e id

. T h u s , Ra in e y a s s e r

ts th a t th e ju r y c h a r g e im p r o p e r ly allowed him to be convicted for a more serious offe nse based on the theory that he was

a party to a less serious offe nse. See id. § 7.01(b) (stating that “par ty to an offe nse” can be char g ed with same off

ense c ommitt ed by

other pa rties). This point of err or and the arg uments made are identical to those raised and addre ssed in Miranda , 2012 WL 6761523 at *3–5. I n that opinion, we conclude d that the jury char g e corr ectly stated both the law of parties and how that law applied to g ang ra p e. Id. We do not repe at that discussion here

. The jury char g e in this case is identical to the one we affirme d in Miran d a , with the exception that Rainey is the named defe ndant rathe r than Miranda. See id. For the rea sons stated in our previous opinion in Miranda , we ove rrule Ra iney ’s sec ond issue on appea l.

11Theory of offense not alleged in indictment I n h i s t h i rd and final issue on appea l, Rainey asser ts that the trial court err ed in instructing the jury on the law of parties based on the indictment in this case . Specifica lly , Rainey claims that the indictment alleg es that Rainey penetr ated K.B .’s mouth with his sexual org an, while

a party theory of liability require s p ro o f that K.B .’s mouth was penetr ated by the sexual org an of

o n e of the other assailants. Thus, acc ording to Rainey , the trial court err ed in providing a jur y 6 instruction that authorizes conviction on a t heory not alleg ed in the indictment. See Cumbie , 578 S.W .2d at 733–34 (noting it is fundame ntal err or for j u ry ch ar ge t o authorize conviction on “one or more other theories not alleg ed in the indictment”), overruled on other grounds by Almanza , 686 S.W .2d at 174.

Rainey does not dispute that the ev i d ence admitted at trial could support the jury finding that he was a party to this brutal assault. “[I ]f the evidenc e admitted at trial supports a char g e on the law of p ar t i es , t h e t rial court may char g e on the law of parties even though there is

n o s u ch alleg ation in the indictment.” Marable , 85 S.W .3d at 292. As previously discussed in Rainey ’s first appellate issue, party liability for this a g g rava ted sexual assault nece ssarily involved the penetration of K.B.’s mout h by the s exual org an of one of the ot her assailants. T h er ef o re, we conclude the trial cour

t did not err in instructing the jury on the l aw of

parties in this case

. See id. We overrule Rainey ’s third issue on appe al.

Rainey appea

rs to acknow ledg e that much of this arg ument is a reiter ation of his first issue 6 on appea l, “only

this ti me in more g ener al terms.”

12CONCLUSION Having overr

uled Rainey ’s t h re e issues on appea l, we aff irm the judgme nt of the trial court.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: F ebrua

ry 22, 2013 Do Not Publish

13