### 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. 03-11-00516- CR

Anthony Craig Mathis, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 666 88, TH E H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

O P I N I O N

A jury convicted Anthon y C ra ig Mathis of sexual assault. See Tex. Penal Code § 22.011. Mathis elec ted to have the trial court assess punishment. See Tex. Code C ri m. Proc. art. 37.07(b). He pled true to enhanc ement para g raphs in the indictment, and the court assessed his punishment at confine ment for life in the Texas Depa rtment of Criminal J ustice. S ee Tex. Penal Code §§ 12.33, 12.42(d). I n a single point of err or on appea l, Mathis complains that the trial court

err ed i n deny ing his reque st for an instruction in the jury char g e on the lesser- included offe nse of assault. Finding no err or, we aff irm the trial cour

t’s judgme nt of conviction.

BACK GR OUND The jury hear d evidenc e that in J anuar y 2010 Mathis and the victim, Trac y Shores, had been involved in a romantic rela tionship for approximately one y ear (excluding a period wher e the two broke up for about five months) but we re not dating eac h other exclusively

. Shoresdescr ibed their rela tionship as romantic but not committed; while they had had sexual rela tions five or si x times, both were fre e to date othe r people . On the nig ht of J anuar y 28, 2010, Shores was a t the hous e of a ma l e friend when she rec eived a phone call from Mathis informing her that he was waiti ng for her at her house. She was surprised by this beca use t he two had no plans to meet t h at night. Howeve r, beca

use her two sons wer e there , she left her friend’ s house and retu rned home. When she arr ived, she found Mathis seate d in his car . He seeme d intox icated and started asking her wher e she had been and who she had been wi t h

. S he invited him inside, and he spent the night. Although the y

share d a bed, the y

did not eng ag e in any

sexual activity

. The next morning when Shores g ot up to take her children to school, Ma this beg an questioning her ag ain about her wher eabouts the night befor e, calling her a derog atory name when she failed to answe r to his satisfac tion. When she returne d home afte r taking her sons to school, Shores got undresse d and sat on the edge of t he bed, intending t o get b ac k into bed to sleep some

more. She asked Mathis to ref rain from calling her derog atory n am es i n fr o n t of her children. I n response , Mathis beg an demanding once ag ain to know wher e she had been and who she had been with the night be fore . He be came more a nd more upset whe n she did not adequately respond. To

av o i d the confr ontation, Shores went into her kitchen, but Mathis followed, shadowing her
movements around the kitchen. Shores beca me afr aid and wanted to leav e t h e h o u s e but Mathis preven t ed her from leaving by blocking the back door. As she tried to maneuve r around him, he g rabbe d her by the hair, g rabbe d her arms, and forc ed her back to the bedroom. He then forc ed her
onto the bed into a position with her head down, chin ag ainst her chest, and her leg s up, knees to her chest, so that she could not brea the. He continued calling her names and demanding that she provide

2details about who she was with and what they wer e doing when he h ad ca l l ed the night befor e.

Shores eventua lly disclosed that she was with her friend and told Mathis that they wer e having sex when he called. She testified that she told him this beca use Mathis g ot more and more upset if she said any thing contra

ry to what he wanted to hear

. Mathis called her derog atory names and demande d details about wha t sex ual ac tiviti es they eng ag ed in. At one p o i n t , Shores attempted to run into the bathroom to esca pe, but Mathis followed, g rabbe d her fee t, pulled her to the fl o o r, an d d ra gg ed her back to the bedroom. Shores strug g led t o resist, believing that if he got her back into t h e b ed ro o m s h e was “not g oing to come back out.” Once in the bedroom ag ain, Mathis forc ed Shores back into the position wher e she could not br eathe

. He continued to interrog ate her and she ag ain told him what he wanted to he ar, afr aid that the situation would worsen if she did not. Mathis beg an st riking Shores on the hea d and fa ce with an open ha

nd, “hit[t ing] her g ood.” He then started taking his clothes off, telling Shores that she was g oing to stay in her house and do whateve r he wanted, including eng ag ing in cer tain sexual

ac t s . He t h re atene d that if she did not, he would “kick her out the door.” He also impliedly threa tened he r and he r childre n by asking her w ho he would hit if he shot throug h her w indow. M at h is then told Shores that she was g oing to “suck [hi s] dick,” calling h er a d er o gatory name and continuing to strike her fac e as he made his demand. He then forc ed her t o perf orm oral sex on him as he hit her and instructed her how he wanted it done. Mathis stopped her in order to have vag inal i n t er co u rs e with her, forc ing her onto her stomach on the bed and penetr ating her from behind. He ejac ulated during intercour se and then ag ain forc ed Shores to perf orm oral sex on him. Shores testified that at no time did she consent to eng ag ing in any sexual

3activity with Mathis that day

. She said she was afr aid to tell him no and testified that she complied

with his demands beca

use she f ear ed he w ould hurt her ba dly if she re fused. After he was finished, Mathis laid down beside Shores on the bed. She then told him that her cousin was coming by and that she neede d to call her to tell her not to come. When Mathis allowed her to g o into the kitchen to make the call, Shores g rabbe d her robe and her cell phone and

ran out the back door. She ran next door, bare foot , clad only in her open robe, as she called 911. No one answe red her knock at her neig hbor’s house, so she ran acr oss the street while talking on the phone to the 911 oper ator. Mathis pursue d her.

At trial, Allen Curl, the neig hbor acr oss the street, testified t h at o n the morning of J anuar y 29, 2010, he was at home wat ch ing television with his front door open when he saw his neig hbor from acr oss the street running up his drivewa y . She was bare foot and wea ring only a thin nightg own or housecoa

t that was wide open i n the front. Be hind Shores, Curl saw a man he had

never seen befor e “double timing it” a fter he r. When the man saw Curl at his door, he turne d, g ot into his car , and drove off. Curl descr ibed Shores as “re al nervous,” “re al panicky ,” and “af raid of something.” He kne w she wa s “re al upset” beca use she was shaking and cry ing. Curl was unable
to see to g et the numbers off the license plate of Mathis’s car , as Shores reque sted, but Shores was able to g ive the 911 oper ator a partial number

. 1

One of the police office rs dispatched in response to Shores’s 911 ca ll testified that he 1 encounte red a car matching the descr iption Shores g ave, including the partial license plate number s h e p ro v i d ed , within five blocks of Shores’s house speeding awa y from the are a. The officer activate d his lights and pursued the car . After catc hing up to the car , the office r activate d his siren in a ddition to his alre ady flashing lights. The driver still did not stop, but continued driving for an additional ten bl ocks and only st o p p ed afte r pul ling into a residence

. Mathis was apprehe nded as the driver of that ca r. 4After Mathis drove off, Shores went back acr oss the street to her ho u s e wh er e she

finished her 911 call and stood in her car port until the police arr ived. The responding office rs found Shores cry

ing and upset and complaining of pain. I n addition, they observe d swelling on the left side

o f h er fac e. They called for an ambulance to take Shores to the hospital for a sexua l as s au l t examination and to check f or injuries. At the hospital, Shores was examine d by sexual assault nurse examiner, Debr a Kley

pas. During her e x amination of Shores, the nur se found soreness on her head, c heeks, neck, rib cag e, and upper leg —injurie s c o n s is te n t with the events Shores descr ibed. Kley pas testified that she found no injuries or damag e during the g enital examination, but that she did not expect to find s u ch gi v en S hores’ s medical and childbirth history

. She testified t hat s uch negative finding s

are common in a mature woman with a history like that of Shores and are not inconsist en t wi t h sexual assault. The nurse took a number of swabs from Shores’s g enitals, mouth, and anal are a for evidenc e collec tion because Shores had indica ted that Mathis had eja culated.

Those swabs, along with samples collecte d by police from the chee ks of Mathis, wer e submitt ed to the Texas Depa rtment of Public Safety L aborat o ry for DNA testing. The fore nsic analy st from the l ab wh o p er fo rmed the DNA analy sis testified that she detec ted semen on the vag inal swab. Ba sed on a compar ison of DNA profiles, Mathi s co u l d n o t b e excluded as the contributor to the sing le source DNA pr ofile fr om the sperm ce ll frac tion of that semen.

I n addition to Sho r es, her neig hbor, and the police office rs who responde d to Shores’s 911 call that night, the State a lso called the office rs involved in the subsequent investiga tion. The defe nse called one witness, the male friend Shores was with when Mathis called her. Mathis did not

5testify

. After delibera ting for 29 minutes, the jury found Mathis g uilty of sexual assault as char g ed

in the indictment.

Mathis elec ted to have the trial co u rt assess his punishment. He pled true to the enhanc ement para g raphs of the indictment alleg ing two prior sequential felony convictions for distribution of coca ine and tampering with phy sical evidenc e. The trial court order ed a pre- sentenc e investiga tion and rese t the case for sentenc ing. At the subsequent punishment hear ing, M athis prese nted t he testi m o ny and letters of family members and friends attesting to his g ood char acte r. The State prese nted two additional witnesses who testified about an extraneous ag g rava ted assault Mathis perpe trated ag ainst them. The trial court found the enhanc ement para g raphs of the indictment to be true and, pursuant to the habitual offe nder punishment provision of the Penal Code, assessed his punishment at confine ment for life in the penitentiary

. See id. § 12.42(d) (providing that
at trial of felony offe nse other than unag g rava ted state jail felony , defe ndant shall be punished by imprisonment for life or any term not more than 99 y ea rs or less than 25 y ear s upon proof of two previous seque ntial felony convictions). Mathis appe als his conviction.

DISCUSSIO N I n his sole point of err or, M at h i s ar gu es that the trial court err ed when it failed to instruct the jury on the lesser- included offe nse of assault. At trial, Mathis reque sted that the jury be instructed on “a ssault,” without r efe renc ing which particula r ty pe of assault. Fr om the context of

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The assault statute sets out three sepa ra t e an d distinct assaultive crimes: bodily -injury 2 assault, assault by threa t, and offe nsive-conta ct assault. See Tex

. P en al C o d e § 22.01(a) (1)–( 3); Landrian v. State , 268 S.W .3d 532, 536, 540 (Tex. Crim. App. 2008). 6his arg ument in the char g e confe renc e, it appea rs he was arg uing for an instruction on assault causing bodily injury

. See id. § 22.01(a) (1). Deter mining whether a defe ndant is entitled to a lesser- included-of fense instruction require s a two-par

t analy sis. Goad v. State , 354 S.W .3d 443, 446 (Tex. Crim. App. 2011); Hall

v. S t a t e , 225 S.W .3d 524, 528 (Tex. Crim. App. 2007). We first consider whether the offen s e contain ed in the reque sted instruction is a lesser- included offe nse of the char g ed offe nse. Rice

v. State , 333 S.W .3d 140, 144 (Tex. Crim. Ap p . 2011); Hall , 225 S.W .3d at 535. I f so, we must d ecide whether the admit ted evidence at trial supports the i nstruction. Goad , 354 S.W .3d at 4 4 6 ; Rice , 333 S.W .3d at 144.

The deter mination of whether an offe nse is a lesser- included offe nse is a question of law and does not depend on the evidenc e to be produce d at tri al

. R i ce , 3 3 3 S .W.3d at 144; Hall , 225 S.W .3d at 535. The inquiry is whether t h e o ff en se reque sted is included within the proof

nece ssary to e stablish the offe nse char g ed. Rice , 333 S.W .3d at 144; Hall , 225 S.W .3d at 531; see Tex. Code Crim. Proc. art. 37.09(1) (“A n offe nse is a lesser- included offe nse if it is established by proof of the same or less than all the fac ts require d to establish the commission of the offe nse char g ed.”) . As the Court of Criminal Appea ls has explained:

An offe nse is a lesser- included offe nse of another offe nse . . . if the indictment for the g rea ter-inc lusive offe nse either: 1) alleg es all of the elements of the lesser- included offe nse or 2) alleg es elements plus fac ts (including descr iptive av er m en t s, such as non-statutory manner and mea ns, that are alleg ed for

purposes of providing notice) from which a ll of the eleme nts of the lesser -included of fense may

be deduc ed.

7Rice , 3 3 3 S .W.3d at 144; see Hall , 225 S.W .3d at 535. This functional-e quivalence conce pt

“re quires courts to ‘examine the elements o f t h e l esser offe nse and decide whether they are functionally the same or less than those require d to prove the char g ed offe nse.’” McKithan v. State , 324 S.W .3d 582, 588 (Tex. Crim. App. 2010) (quoting Farrakhan v. State , 247 S.W .3d 720, 722–23 (Tex. Crim. App. 2008)).

A person commits t h e o ffense of sexual assault if he intentionally or knowing ly

cause s the penetration of t he sex ual orga n of an o t h er person, by any means, without that person’ s consent. Tex. P enal Code § 22.011( a)( 1)(A) . Such sexual assault i s without consent if “the actor compels the other person to submit or participa te by the use of phy sical forc e or violence.” Id. § 22.011(b)( 1 ). A person commits the offe nse of assault causing bodily injury if the person intentionally , knowing ly , or re cklessly cause s bodily

injury to another. Id. § 22.01(a) (1). “B odily injury ” means phy sical pain, illness, or any impairment of phy sical condition. Id. § 1.07(8). Bodily injury is not an element of the offe nse of se x ual assault. Assault causing bodily injury require s an additional element not re quired for the offe nse of se x ual assault. Mathis was cha

rg ed with the sexual a ssault of Shores by causing the penetr ation of her sexual org an with his penis without her consent. See id. § 22.021(a) (1)( A). To prove the offe nse of assault causing bodily injury , the State would have to show that Mathis intentionally , knowing ly ,

or rec klessly cause d Shores bodily injury

. See id. § 22.01(a) (1). The element of bodily injury was not an ele m en t wh i ch the State had to prove to establish the char g ed offe nse of sexual assault. 3

Although the evidenc e in this case showed that Shores was injured during the course of the 3 s ex u al assault, the State was not required to prove that Shores was injured in order to secur e a conviction for sexual assault. “The rele vant inquiry is not what the evidenc e may show but what the 8There fore , assault causing bodily injury is n o t es t ab lished by proof of the same or less than all of

the fac ts require d to establish the char g ed offe nse of sexual assa u l t ; b o dily -injury assault is not a lesser- included offe nse of sexual assault. See, e.g. , W i l l i ams v. State , No. 02-06-00454- CR, 2008 WL 623805, at *1 (Tex. A pp.—For t Worth Mar. 6, 2008, no pet.) (mem. op., not de signa ted for publication) (holding that assault bodily injury is not lesser- included offe nse o f attempted sexual assault beca

use it require s proof of additional element of bodily injury); W hite v. State , No. 03-01-00616- CR, 2002 WL 1804893, at *3–4 (Tex. App.—Austin Aug

. 8, 2002, pet. ref ’d) (op.,
not desig nated for publication) (same)

. The first step of t h e l es s er -included- offe nse analy sis is
not met. I n his reply brief, Mathis asser ts that under a functional-e quivalence analy sis the act of pe n et ra t i n g the s exual org an without consent it self supports an inferenc e of bodily injury or, at the very least, constitutes an “off ensive touching .” Howeve r, the issue is not whether bodily -injury 4 assault or offe nsive-conta ct assault may be deduce d or inferr ed from the indictment’s alleg ation that

State is require d to prove to establish the char g ed offe nse.” McKithan v. State , 324 S.W .3d 582, 593 (Tex. Crim. App. 2010); Crippen v. Stat e , 368 S.W .3d 630, 6 3 2 (T ex . App.—Eastland 2012, pet. ref ’d); see, e.g. , W

illiams v. S t ate , No. 02-06-454- CR, 2008 WL 623805, at *1 (Tex. App.—For t Worth Mar. 6, 2008, no pet.) (mem. op., not desig nated for publication) (“The evidenc e in the rec ord that Appellant inflicted bodily injury on the complainant is immaterial to our de termination.”). To establish an offe nsive-touching assault, a person must intentionally or knowing ly cause 4 phy sical contac t with another when the person knows or should rea sonably believe that the other will consider the contac t offe nsive or provoca tive. See Tex. Penal Code § 22.01(a) (3). Mathis does not expli citly ref

ere nce offe nsive-conta ct assault, but aver s “The whole ra t i onale behind outlawing sexual assault is that [penetrating the fema le sexual org an without t h e co mplainant’s consent] is prec isely the ty

pe of conduct that is reg arde d as offe nsive or provoca tive.” Fur ther, he sug g ests that the definiti on of bodi l y i n j u ry i s so broad that it includes even mere ly offe nsive touching

. As the Penal Code expli citly define s bodily injury , we reje ct that arg ument but, due to Mathis’s aver ment, include the of

fense of off

ensive-c ontact assa

ult in our analy sis. 9Mathis penetr ated Sh o res’ s sexual org an without her consent, but whether this alleg ation in the

indictment is functionally equivalent to a n alleg ation of bodily -injury assault or to a n alleg ation of offe nsive-conta ct assault—i.e., whe ther, in establishing the alleg ation of pene tration of the se x ual org an without consen t , t h e State was require d to prove bodily -injury assault or offe nsive-conta ct assault. See McKithan , 324 S.W .3d at 589–90. An alleg ation that a sexual assault is without consent due to the use of phy sical forc e or violence is not functionally equivalent to an alleg ation of bodily injury or an a lleg ation of phy sical conta ct. See id. at 590. Thus, the State is not require d to prove bodily injury or phy sical contac t to establish “phy sical forc e or violence” in a sexual assault. See id. Her e, bec ause the State was not require d to prove either bodily injury or offe nsive touching to demonstrate that Mathis penetr ated Shores’s sexual org an without her consent by using phy si cal forc e or violence, we conclude that, contra ry to Mathis’s asser

tion, the penetr ation of Shores’s s e x ual org an without her c onsent is not the functional equiva lent of bodily injury or off ensive c ontact. Moreove r, even if Mathis’s contention that pene tration of the sexual org an without

consen t i s t h e functional equivalent of bodily injury or an offe nsive touching wer e true, he would still not be entitled the re quested instruction.

The sec ond step of the lesse r-include d-off ense a naly sis determines if ther e is some evidenc e in the rec ord t h at wo uld permit a jury to rationally find that, if the defe ndant is g uilty , he is g uilty only of the less er -i n cl uded offe nse. Rice , 333 S.W .3d at 145; Guzman v. State , 188 S.W .3d 185, 188–89 (Tex. Crim. App. 2006). The evidenc e must establish the lesser- included offe nse as “ a valid, ra tional alterna tive to the char g ed offe nse.” Rice , 333 S.W .3d at 145 (quoting Hall , 225 S.W .3d at 536); Segundo v. State , 270 S.W .3d 79, 91 (Tex. Crim. App. 2008).

10Even if the act of penetr ating Shores’s sexual org an without her consent constituted

evidenc e of bodily injury or an offe nsiv e t o u ch i n g, this evidenc e does not establish the 5 lesser- included offe nse as a valid, rational alterna tive to sexual assault. No rational jury could find that Mathis was g uilty only of the lesser offe nse of b o d il y - in jur y assault (or offe nsive-conta ct assault) when the very evidenc e establishing that assault—the penetr ation of Shores’s sexual org an without her consent—c onstitut es proof of t h e g rea ter offe nse of sexual assault. I f Mathis committed the offe nse of bodily -injury assault (or offe nsive-conta ct assault) by penetr ating Shores’s sexual org an without her consent, as he asser ts in his reply brief, he nece ssarily committed the offe nse of sexual assault as a lleg ed in the indictment. This evidence of pene tration without consent would be pr oof of both the g rea ter offe nse and the lesser offe nse and, thus, would not enable a rational jury to conclu d e t h at M athi s was g uilty only of the lesser- included offe nse of bodily -injury assault or offe nsive-conta ct assault.

CONCLUSION

Bodily -injury assault require s proof that Mathis cause d bodily injury t o S h o res; offe nsive-conta ct assault require s proof of phy sical contac t that Mathis knew or should have

rea sonably believed that Sh o res would reg ard as offe nsive or provoca tive. See Tex. Penal Code § 2 2

. 01(a) (1), (3). Neither of these elements is within the elements of the sexual assault ch ar ged

We note that two of our sister courts of appea ls have held that evidenc e of penetr ation does 5 not constitute evidenc e of b o d i l y i njury

. See Crippen , 368 S.W .3d at 632; W ilson v. State , Nos

. 12-02-00042- CR & 12-02-00043- CR, 2003 WL 21771766, at *7 (Tex. App.—Ty ler J uly 31, 2003, no pet.) (me m. op., not designa ted for publication). 11i n t

h e i n d i c t m e n t. Co n s e q

u e n tl y , th e s e a s s a

u l t o f f e n s e s a r e n o t l e s s e r - i n c l

u d e d o f f e n s e s o f s e x u a l a s s a

u l t

. Moreove r, even construing penetr ation of the sexual org an without consent to be the functional e quivalent of bodily injury or an of fensive touc hing, e vidence of such a n assault would simult aneously constitute evidenc e of the gre at er offe nse of sexual assault alleg ed. Thus, such evidenc e woul d n o t enable a rational jury to conclude that Mathis was g uilty only of the lesser- included off

ense of either bodily -injury

assault or off

ensive-c ontact assa

ult. Acc ording ly , Mathis was not entitled to an instruction on assault. The trial court did
not err by deny ing the reque sted jury instruction. We overr ule Mathis’s sole point of err or and aff irm the trial cour

t’s judgme nt of conviction.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: De cembe r 18, 2013 Publis h

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