*1 person- an assertion of Texas however, Danziger and jurisdiction;
al failed to all bases for the negate
Lawson jurisdic- personal
trial court’s exercise of Accordingly, over them. we reverse
tion deny- of the court’s order portion trial appearance D.H. Blair’s special judgment dismissing appellees’
render against
claims D.H. Blair. remainder trial court’s order is affirmed. EDWARDS, Appellant,
Michael Jerome Texas, Appellee.
The STATE of 14-01-01143-CR,
Nos. 14-01-01144-CR. Texas, Appeals
Court Dist.). (14th
Houston
Jan.
MAJORITY OPINION ANDERSON, JOHN S. Justice. trial, Following appellant was convicted of two improper crimes: activity custody with a and sexu- al assault. In appeal, this consolidated ap- pellant asserts points ten of error. We affirm.
PROCEDURAL BACKGROUND *4 causes, In separate two appellant was (1) jail indicted for felony state offense improper activity sexual a person with (2) custody; sexual assault. See 39.04(a)(2)1 §§ Tex. Pen.Code Ann. 22.011(a)(1)(B)2 (Vernon 2002 and trial, After a was found guilty of both offenses.
Judgment and sentence were rendered Appellant on October 2001. was sen- years’ tenced to two confinement in the Department Texas of Criminal Justice (TDCJ) State Jail Division for the offense improper activity a person in custody, years’ and to ten confinement in the TDCJ Institutional Division for the sexual assault offense.
Appellant appeal filed notices of on Oc- tober 2001 and a motion for new trial on Appellant’s November motion for Salhab, Houston, Joseph appellant. for by operation trial new was overruled law. Fix, Houston, Deangelo Lori appel- for
lee. FACTUAL BACKGROUND YATES,
Panel consists of Justices Corpus was arrested in ANDERSON, Christi, Texas, and FROST. open on an warrant offense, 1. On the date pensation facility, of the Penal Code at a correctional a volun- 39.04(a) § provided that official or em- "[a]n facility, peace teer at a correctional or a offi- ” ployee facility of a peace correctional or a cer commits an offense if.... intentionally: officer commits an offense if he contact, engages in sexual sexual inter- 22.011(a) provides 2. Penal Code that "[a] course, or deviate sexual intercourse with an person person: if the commits offense custody.” individual in In the 77th (B) intentionally knowingly: or causes the Legislature paragraph rewrote the initial penetration person by of the mouth of another facility, read: “An official of a correctional actor, organ the sexual without that employee facility, correctional person’s consent.” other than an who works for com- confined in prisoners were in Harris areas. Female against filed her charges theft the driv- located behind the middle section custody for fifteen being After them separated Christi, seats. A mesh screen transport- ers’ days Corpus she was drivers; through they were fed from the operated by in a van Trans- ed to Houston x located “portholes” 8" transport It two 8" during America. Cor for which screen. to Houston the offenses place.
appellant was convicted took handcuffs and shack- prisoners All wore except at all times around their ankles only is located five les Although Houston overnighting Christi, using the restroom complainant’s when Corpus hours from facility. Chains went days, at a correctional transport to Harris took six hand- ankles to their prisoners’ from the eighteen stops, than involved more waist, just leaving around their spending more than cuffs and resulted her Complain- Although enough room to eat drink. hours in TransCor’s control. only “baby could take that female ex- ant testified she policy TransCor mandates only her head accompany pris- steps” ah and could scratch agents tradition female lap. One oners, it into her assigned complainant’s none was when she lowered could lift their Corpus prisoners witness testified during transport van her from *5 stom- only “six inches from their to Houston. hands Christi achs, if that much.” Initially misunderstanding there awas was by complainant’s appellant The incident for which TransCor drivers that rape was for the of County emanated out of Harrison tried and convicted warrant 19, 1999. The complainant of Harris This resulted in on October instead in the TransCor complainant’s spending 18 to 20 hours on sexual assault occurred was day transport; the first on Interstate 10 while Jackson road her van and Valley driving. According complainant’s to first she was driven south to Texas’ area, Belton, shortly arriv- testimony, then north to In Jackson’s before Texas. Houston, Belton, complainant left until a second at the Harris was seat, got the driver’s transport get appellant vehicle could come to her. behind into the through porthole the food reached Although trip her from Corpus Christi pulled prisoners’ compartment, female exhausting to Belton was and uncomforta- by chains and hair to the complainant her ble, complaint complainant raises no perform forced to oral porthole, and her against the first two TransCor drivers who ejaculated into Appellant sex on him. they transported her. She testified be- complainant’s mouth and on her shirt. people.” properly haved and were “nice trial, included pick At the State’s evidence the next TransCor van came to When Jackson, complainant, and Belton, however, oper- testimony of up her it was up prisoners who traveled with by Jackson and Michael Ed- two other ated David appellant during the five- wards, during complainant and appellant. It was day trip from Belton.3 portion trip complainant that testi- sexually fied she was assaulted. trial, at According testimony admitted complain- complainant several factors contributed TransCor van which and her state appellant into three ant’s fear of transported was divided testimony during his was admitted only passenger van affidavit of 3. The other in the de- exception. the incident —a Costa Rican native—was defense counsel as bill of ported testify at trial. A sworn and did not “good girl” cooperated insisted she was a and with during mind the assault: his prisoners throughout call him “boss man” demands. trip; talking among he did not allow assault, complain- Soon after the sexual sexually explicit prisoners; he used ant at the Harris Jail and arrived prisoners;
terms and fondled the female disclosed her attack to authorities. Evi- complainant by forcing and he terrorized split lip. dence indicated she had a In expose her to raise her shirt and bra to addition, pieces it was discovered two passengers appellant. herself to other and away of evidence had secreted Appellant also reached into the female during trip business card of Jack- —a prisoners’ compartment penetrated and prison- son’s and list names of fellow fingers, a complainant’s vagina with his might ers who serve as witnesses —were kept he flashlight, handgun; shot- missing bag personal belong- from her prisoners’ on a rack the female gun above found them in a trash ings. Authorities heads; he conducted “screen tests” for area; processing can near the inmate entertainment, whereby he would slam on only persons access to these items with brakes, hit forcing prisoners the van’s away thrown them were who could have screens; against the their faces wire appellant and Jackson. he intimidated and humiliated women arrest, Subsequent com-
prisoners by illuminating their faces and line-up; plainant identified exposed night flashlights. breasts on com- investigators found semen stains occasion, appellant and Jackson On one positive for plainant’s shirt tested pulled their van over to the side of the DNA; blood complainant’s they prisoners road and told the were underwear; found on her stains were chains, *6 going to undo their force them samples of fluid from the floor of the taken run, attempting to and shoot them seat tested from behind the driver’s van occasion, appellant escape. On another appellant’s for semen and DNA. positive soap slid a bar of under a bathroom door APPEAL ISSUES ON up complainant
and told to “clean herself Appellant points and also for him.” Jackson In and second appellant’s first everyone gun van a appeals appellant threatened the with error —common to both — (1) anyone anything, they if said to and said that is insufficient asserts the evidence the “take care of them”—which the evidence preponderance would prove “kill to mean them.” in Har- prisoners interpreted place took appellant’s that offense Texas; and Jackson trial court Testimony appellant indicates and the County, ris prison- objection to use mace on the to also threatened improperly appellant’s denied appellant’s coun- argument ers. State’s attempting to confuse sel was appellant The witnesses testified of venue. with the issue into and Jackson crossed the border Mexi- per- drunk, In co, cause number got prostitutes and visited dur- 14-01-00143-CR — for im- beer, alcohol, conviction taining and to trip; they had ing the proper activity with marijuana; appellant told sexual and the evidence custody appellant asserts strip visit a club Houston planned he — factually insufficient “prepare” sexually legally him and her to wanted employee of the appellant com- was Appellant for the visit. also warned of- at the time of the County at the Har- Harris plainant people that he “knew” if fense. would treat her well County ris Jail who per- 2. Discussion
In cause number 14-01-01144-CR — appellant’s conviction for sexual taining to made an issue properly was the evidence Venue appellant asserts
assault — factually appellant insufficient first raised legally was at trial because physical used force prove pretrial in a motion. issue of venue Tex. (2) R.App. against complainant; violence He continued P. 44.2(c)(1). Ann. physical force appellant threatened to use by as during trial make venue an issue complainant. against or violence not know complainant did serting that the time she during she was most of where I. OF ERROR COMMON POINTS complain transported and that being was APPEALS TO BOTH intersecting of two ant’s identification A. VENUE insufficient highways in Harris place in Harris prove the assault took error, point
In con- his first County. disagree. We insufficient evidence to tends there was place in Harris establish the offenses took (a) supports a evidence The State’s County, Texas. took reasonable inference offenses of Review Standard County. place in Harris rule, general proper As a venue is at trial shows that The evidence of county alleged where an in fact occur place.
fense takes offenses did Tex.CRIM. PROc.Code (Vernon §§ 18.14 and 13.17 driver of the van Harris Ann. proof The burden of is on the State to Highway 6 the vehicle was around testified proper by preponderance venue establish County, 10 in Harris and Interstate of the evidence. TexCRIm. PROc.Code at the sign that he saw a for “Addieks/6” (Vernon 1977); 13.17 Black v. investigator An of the assault. time Pe (Tex.Crim.App.1983); Attorney’s Of County District the Harris (Tex. terson v. Highway Interstate 10 and fice testified pet.). App.-Houston no [14th Dist.] than ten in Harris more intersect county prove Failure to venue it is a county line and that miles from the *7 Black, prosecution is reversible error. See Highway 6 to trip by car from 30-minute However, pre it 645 is S.W.2d fur County investigator The Harris Jail. proven that is in the trial sumed venue only signs that exist testified that the ther affirmatively shows court unless the record Inter exit are located on for an Addicks/6 is made an issue at otherwise or venue county line. state 10 within the Tex.R.App. trial. See P. 44.2(c)(1). addition, testified In herself may trier of fact make rea (1) as van the assault occurred the evidence to sonable inferences from Interstate 10 from Co- traveling down was decide the issue of venue. Bordman (2) Houston; sign a for she saw lumbus to State, 63, (Tex.App.-Houston 56 70 S.W.3d was 6 as soon as the assault Highway ref'd). 2001, pet. Evidence Dist.] [14th at the intersec- completed; the van was if venue “from sufficient establish 6 within Highway 10 and tion of Interstate reasonably jury may conclude evidence attack; and minute of the van one in the that the offense was committed 10 County Harris Jail within State, arrived at the Rippee v. 384 county alleged.” the assault. 717, to 15 minutes of (Tex.Crim.App.1964). 718 S.W.2d (b) suit); Appellant points county evidence within of Lozano v. to no anywhere place 925, 1997, in (Tex.App.-El the offenses took but Paso S.W.2d Harris pet.) (finding no sufficient evidence for proper venue where victim testified moles- concluso- Although appellant makes the “very place tation took an automobile ry that the evidence is insuffi- statement his home and his house was near” support cient to that suit); county of and Jasso v. County, offenses occurred Harris he (Tex.App.-San Antonio points nothing in the record to pet.) (finding no sufficient evidence Indeed, theory. an alternate defense testified she proper venue where victim during hinted trial that the van counsel was driven to sexual assault site within Highway came into Houston on 59 rather a mall and a second wit- leaving hour of Highway placing than 10—thus the offense an hour to it took at least ness testified County rather than Waller Harris —but line). county to the from the mall drive theory. Defense supports no evidence tracking that a suggested counsel GPS testimony that complainant’s Based on system appellant’s path traced into Hous- place approximately 10-15 the assault took different supported ton and that it a route the Harris arriving minutes before by complainant, from the one described sign and because she saw tracking data admitted but no GPS was immediately after located in Harris Finally, counsel into the record. defense attack, find the State established her we testimony from one of the State’s elicited by preponderance proper venue complainant’s trip into witnesses point overrule Accordingly, evidence. we longer Houston took than it should have one. error number by com- following path taken described only plainant, but such evidence shows B. DENIAL OF APPELLANT’S OB- necessarily not indi- gap time—it does CLOSING JECTION TO STATE’S route was taken. cate an alternate ARGUMENT (c) Specific points of reference and error, appellant point In his second passages time can venue. establish revers- contends the trial court committed objection to the overruling his sought venue is be estab ible error
Where vehicle, counsel at- defense moving argument in a State’s lished someone the issue and measurable specific points tempted of reference to confuse argument the offense passages of time can establish He claims such of venue. county. proffered in the State’s inflammatory improper. occurred State, 936 See Adams v. Review Standard ref'd) (finding (Tex.App.-Tyler pet. *8 in reviewing alleged error When proper venue from
sufficient evidence for court must appellate the jury argument, flight path plane where took off plane’s the entire light of analyze the statement county of suit and sexual and landed instances. isolated and not on lay part argument point of reference assault victim’s (Tex. 207, State, 220 State, v. 743 S.W.2d county); v. 875 Drew ly Sixta constitute re In order to 17, Crim.App.1987). (Tex.App.-Houston [1st 18 S.W.2d ref'd) error, must be ex argument 1994, the pet. (finding sufficient versible Disk] of improper, violative manifestly or judicial proper venue treme evidence for notice statute, inject new facts or mandatory testified offense took policeman where pro- into the trial harmful to the accused landmarks located place in front of two 287 any- 28, proof prove to State, have a burden of McKay 707 ceedings. v. S.W.2d thing. is to be (Tex.Crim.App.1985). Counsel 38 drawing latitude in inferences
given wide tell the The instructions COURT: record, long as as the inferences from the jury that. Overruled. good faith. reasonable and offered
are clos the State’s Appellant argues (Tex. State, 192, Coble v. that he improper and ing remarks were Crim.App.1993). right tried statutory be has 2. Discussion allegedly took county the offenses where 13.17 place. PROc.Code Tex.CRIm. closing to the During remarks (Vernon State, 1977); Black v. 645 S.W.2d phase of jury during guilt-innocence (Tex.Crim.App.1983). The State trial, argued appellant’s defense counsel appellant’s objection responds by asserting prove by prepon failed to that the State from because it differs appeal on is waived alleged derance of the evidence that agree. one raised at trial.4 We place took in Harris offenses objection stating legal An one ba responded State as follows: used to a different may sis not be you ques- And let me ask this STATE: State, 782 theory appeal. on Rezac v. legal If is innocent of tion. Mr. Edwards (Tex.Crim.App.1990). offenses, why it both of these does judges trial must have This is so because (sic) even matter that whether or not legal to rule on theories opportunity happened County? Why it in Harris opportunity must have the and the State they’re arguing is it so much about objections supply or other testimo remove Texas, getting County, it out of Harris 360, 365- ny. Purtell v. 761 S.W.2d prove cannot saying State (Tex.Crim.App.1988). innocent, you? If he’s this he’s case, objection at trial appellant’s In this Why they go innocent. is it want argument placed that the was State’s thing? on this Because the evidence ap On proof on the defense. burden is there to show that he isn’t innocent. for argues improper it is peal, appellant They’re taking every swipe at confusing appellant was the State to assert they case that can to either confuse appel jury. Because misleading or you you try get you or mislead comport objection at trial does not lant’s anything away to do to look from this nothing is complaint appeal, on with his And evidence. that’s what this whole Re review. See presented appellate jurisdiction issue about is all about. zac, at 782 S.W.2d DEFENSE COUNSEL: We would ob- Honor, appellant’s sec- Accordingly, we overrule ject, Your to that line of—as argument point we don’t ond error. improper because "confuse” argues the first mention of the words also counsel 4. The State Tex.R.App. timely object. conjunction See the issue did not and “mislead” P. 33.1(a)(1); Smith "jurisdiction,” we will construe ref'd) (Tex.App.-Fort pet. Worth timely. objection as (finding prosecutor made two identical when (1) the State’s also asserts that The State statements, objection to second statement if the proper; and even remarks were object *9 untimely did not to when defendant they improper, were resulted remarks court, however, first). agree This does not objec- the Appellant waived harmless error. untimely. objection was defense counsel’s tion, issues. so we do not reach these objection raised his Because defense counsel 288 State, 1, unjust. v. 23 S.W.3d 7 PERTINENT Johnson
II. POINTS OF ERROR (Tex.Crim.App.2000). 14-01-01143 We must review the TO CAUSE NUMBER jury weighed by tending APPELLANT’S STATUS evidence ONLY: prove AN EMPLOYEE OF HARRIS of the elemental fact AS existence dispute, compare COUNTY and it to the evidence disprove that fact. Id. The tending to pertain- In cause number 14-01-01143— appellate may court find either that improper conviction for proof guilt obviously was so State’s person custody— activity sexual with a weak as to undermine confidence in his third and fourth appellant asserts determination, jury’s finding or that the legal- points of error that the evidence was against great weight and guilt was support a ly factually and insufficient to of the evidence. Id. preponderance employee an jury he was contrary proffers evi the defendant When at the time of the the Harris dence, proof of we consider whether the offense. alone, if taken is guilt, although adequate A. of Review Standard prof outweighed by defendant’s greatly standards apply We different may disagree with Id. We fered evidence. reviewing legal when the evidence decision, if probative even evi jury’s legal sufficiency. factual To determine supports the verdict. dence exists in the sufficiency, we view the evidence (Tex. 642, State, 647 v. 944 S.W.2d Jones verdict and light most favorable to the However, a factual suffi Crim.App.1996). any determine whether rational trier appropriately defer ciency review must be ele fact could have found the essential substituting judgment our ential to avoid beyond a reasonable ments of the crime are fact Id. We for the finder’s. Virginia, 443 doubt. See Jackson v. U.S. evidence, must reweigh the but not free to 307, 2781, 319, L.Ed.2d 560 99 S.Ct. 61 only prevent jurisdiction exercise our State, (1979); v. Garrett S.W.2d Id. manifestly unjust result. This standard (Tex.Crim.App.1993). B. Discussion applies involving to cases both of review King evidence. direct and circumstantial the evidence asserts Appellant (Tex.Crim. v. factually insufficient for legally not App.1995). appeal, this court is On employee of the an to find he was weight credibility of the reevaluate the he was an argues He County Jail. Harris evidence; only whether the we consider private America—a employee of TransCor a rational decision. See jury reached had the Jail transport agency over which (Tex. Muniz employed not so was no control—and trier of jury, as the Crim.App.1993). disagree. County Jail. We the Harris fact, credibility of judge the sole State, 864 See Soto v. the witnesses. of im- offense At time (Tex.App.-Houston [14th activity with proper sexual ref'd). 1993, pet. Dist.] occurred, deemed the offense was custody official of a occurred when have To factual sufficien determine of a cor- facility, correctional light in neutral cy, the evidence we view peace officer en- facility, or a rectional only if it is so the verdict and set aside contact, inter- sexual gaged sexual overwhelming weight of contrary to the course, intercourse or deviate clearly wrong as to be the evidence *10 therefore, test, for whether The custody. a person Tex. Ann. Pen.Code Harris “employee” of the appellant was an 39.04(a)(2)(Vernon 2002).5 § subject to he was County Jail is whether code does not define the term penal The Ackley, 592 S.W.2d control. Jail's However, the Texas Court “employee.” case, there is no dis In the instant 608. expressly has held the Appeals Criminal County Harris Jail meets pute that the “agent” and “employee” term includes facility” as de definition of “correctional State, Ackley v. 592 S.W.2d “servant.” See Texas Penal Code.6Additional fined that, (finding (Tex.Crim.App.1980) a ly, is sufficient evidence there Beverage Code failed where the Alcoholic employee, “an appellant “employee,” to define the term should be agent” of Harris namely, transportation a “agent” of a retail construed to include over County by virtue of its control licensee). Heberling v. shows: appellant. Specifically, beer See also evidence (Tex.Crim.App. (cid:127) con- Appellant’s employer was under 1992) (finding police informant acted as an Jail; County tract the Harris with accept agent of law enforcement when he (cid:127) County Harris Jail controlled the ed and delivered cocaine on behalf of a booking process appellant and Jackson officer). Indeed, police “agent Houston followed; principal” is the of his and the (cid:127) County The Harris Jail controlled who principal a and his relationship between transported and appellant Jackson and agent employment. constitutes a form of them; they took where Ackley, 592 (cid:127) taught drivers TransCor were regulations required by and fed-
rules agent An is someone is who police agencies; eral and local by authorized another to transact business (cid:127) considered himself to be a Jackson manage or affair for him some transportation agent” for “designated accounting render to him an of such trans Jail; he acknowl- the Harris a “agency” action. Id. The term denotes acted for the edged he existing they consensual relation between two trans- Harris Jail when admit- by ported complainant; and he persons, virtue of which one of them is appellant had ted that neither he nor other, being to act for and on behalf of the authority change orders without subject to the other’s Id. also control. See seeking permission from Trans- first (Tex. Alvarado v. Cor, who was under contract Crim.App.1993) (finding police Mexican Harris acting agents were not as law U.S. they a
enforcement officials when obtained re- Because and Jackson were they booking proce- confession from defendant since acted quired prescribed to follow behalf). “accounting” of sorts —when independently on their own dures—an (B) facility by jail; operated Legislature 77th a confinement In rewrote Justice; supra paragraph initial of this statute. See Department of Criminal the Texas (C) note 1. facility operated under a confinement any Texas De- contract with division of the facility” defined the Pe- 6. "Correctional Justice; (D) a partment Criminal com- designated by place a law for the nal Code as facility operated munity corrections for, charged arrested confinement of community supervision de- and corrections with, offense. Tex. or convicted of criminal partment. Tex. Pen.Code Ann. 1.07(a)(14) (Vernon 1994). § Pen.Code 1.07(a)(14)(A)-(D)(Vernon (A) county municipal The term includes: *11 third, fourth, in his appellant asserts prisoners; required were they dropped off tion— fifth, those worn of error that points uniforms that mirrored and sixth the to wear officers; County police factually were legally Harris insuffi- evidence dep- County police Harris acting lieu of support jury’s findings the because cient to they transported prisoners; uties when trier of fact could have no reasonable orders authority change lacked to use— found he used —or threatened from an seeking permission first without against or the com- physical force violence source, sup- find the evidence external we plainant. disagree. We appellant that was con- ports a conclusion A. of Review Standard “to act for and by, trolled and authorized of,” Harris Jail. As on behalf the legal the same and factual apply We such, reasonably could have a rational sufficiency of review as detailed standards “employee, an name- appellant found be II. A. above Section with- ly transportation agent” of the Jail B. Discussion Texas Penal Code meaning the 39.04(a). Thus, § we find the evidence testified verdict.
legally sufficient to any “express did not make appellant testify put not or appellant Because did upon or violence” physical threat of force contrary, to the the test for on witnesses her; thus, argues appellant, he exercised evidence sufficiency factual is whether the intimidation,” not only “generalized as an establishing or violence” or physical use of force “overt under- Harris Jail is so weak as to argu threat.”7 find this “express We jury’s determina- confidence mine unpersuasive. ment to be Johnson, Applying tion. standard, weight find the we of sexual person A commits the offense Thus, we supports the verdict. evidence intentionally if person assault factually to be suffi- also find the evidence penetration of the knowingly causes the cient. person by another the sexual mouth of third and fourth Accordingly, appellant’s actor, person’s without organ of related to his conviction points of error consent. Tex. Pen.Code person sexual contact with improper 22.011(a)(1)(B)(Vernon situ- § Two custody are overruled. of consent are: that constitute lack ations person compels actor the other PERTINENT III. OF ERROR POINTS participate by or the use of to submit 14-01-01144 TO CAUSE NUMBER violence; [and] force or physical APPELLANT’S USE AND ONLY: THREATENED USE OF FORCE compels the other the actor by threaten- participate to submit or pertain- In cause number 14-01-01144— against force or violence ing to use convic- sexual assault ap- impossibility is not relevant physically crimes—so contends it was Appellant also Thus, challenge. we de- sufficiency pellant's physical exercised impossible for him to have cline to address it. complainant be- or violence over force "simply seeking too van was now to Additionally, cause the TransCor if However, ability charged cramped.” impossibility a defendant’s as a defense to raise offenses, was not alleged is not an late. The issue actually offense it is too commit brought 39.04(a)(2) jury, § nor was it 22.001— submitted to the element of either thus, waived. appeal; it has been on defense to the forward as a nor is it enumerated violence force and physical per- other evidence person, the other and the in- accepted sexual passively victim where that the actor has the son believes *12 she had been forced because tercourse the threat. present ability to execute by being demands beaten submit to sexual 22.011(b)(1) §§ and See Tex. Pen.Code Ann. life). her most of 2002). (2) (Vernon force, wheth- concept in the of Inherent in alleged appel- Both situations were force, threats, or some it physical er be and the trial court sub- lant’s indictment that, coercion, a is when type other of jury jury. to the re- mitted both op- involuntarily faces distasteful guilty. of general turned a verdict tions, that which very it human to select every in criminal The verdict State, Brown v. is the least distasteful. general. action must be 820, (Tex.Crim.App.1978); 823 PROG. 576 S.W.2d Tex.CRIm. 37.07(l)(a) (Vernon Smith, at 403. 719 S.W.2d Code many sepa may An indictment contain as Here, show- the State offered evidence offense paragraphs charging rate the same (1) gun a com- appellant inserted allege the manner necessary as various (2) wishes; plainant’s vagina against her al having committed one and means of of pulled to the side appellant and Jackson contingen and to meet the leged offense complain- a and threatened to shoot road State, v. 19 cies of the evidence. Graham in a “mock prisoners the other ant and 851, (Tex.Crim.App.2000). 853 S.W.3d (3) kept a appellant and Jackson escape”; committing the of When such methods head; complainant’s above shotgun stored alleged conjunctively, proof are fense (4) injury inflicted appellant and Jackson any ways charged of the the indict one of “screen complainant through series on Sidney v. ment will conviction. (5) tests”; brand- appellant and Jackson State, 679, (Tex.Crim.App. 560 S.W.2d 681 complainant told weapon ished 1978). Here, we find the State conclusive told,” they they that “if prisoners other ly use of proved threatened (6) of’; appellant care be “taken would force. people threatened to have partner and his jails they visited “take care” at the physi Explicit verbal threats and (7) anything; appel- prisoners they if said injury necessaiy prove cal are not to use threatened partner lant and his compelled partic defendant a victim’s (8) complainant’s prisoners; mace on the State, ipation. See Barnett v. 820 S.W.2d futile “stop” “no” and had been cries of 240, 1991, 241-42 (Tex.App.-Corpus Christi assaults; appel- previous off warding 'd). State, 750 pet. ref See also Garcia v. hair and chains pulled complainant’s lant 922, (Tex.App.-Corpus Christi demands; making his immediately prior to 1988, physical force pet.)(finding no use that if she complainant thought where victim did not resist violence to tell her she would survive cooperated, pas appellant previously had secured but story to authorities. her); by choking v. compliance Graves sive complainant 238, jury rational to find (Tex.App.-Cor For a 994 S.W.2d 'd) a “threat of force or violence” (finding appel suffered pus pet ref Christi reason- such circumstances seems implicit under lant’s demands carried threat submit, Indeed, carried appellant’s demands she would be able. that if victim did not that if did implicit threat previously); Smith beaten as she had been submit, harmed would fact be (Tex.App. not she Graves, 994 S.W.2d (finding way. some See pet.) no [1st Dist.] Houston therefore legally We find sufficient evi- ficient control over to make him for a dence to find used the Jail’s under section 39.04 of Code, physical threats of the Penal holding force or violence to based on complainant’s Ackley v. agent obtain consent to his sexual State that “an is the em- ployee To of his principal.” demands. hold otherwise “would be to (Tex.Crim.App.1980). require Ackley, who assault victims had howev- er, previously refusing general is somewhat odds been beaten for principles upon sexual advances of it again agency their attacker to law which *13 Ackley suggests physically agents be forced to submit to relies. that all are the or, of the id. predator employees. whims sexual See But Texas law has the least, very compel long recognized every an agent them to make an ex- that not is agent indepen- of an press person employee; may threat force such an be before Baptist Hosp. could be held for their ac- dent contractor. Mem’l accountable See 945, out, 947 pointed Sys. Sampson, tions.” Id. As the court v. Graves (Tex.1998); & Rem. travesty.” indeed would Id. see also Tex. Civ. PRAC. “[t]his be 101.001(2) (Vernon Supp. § Code testify put Because did not 2002) govern- (defining “employee” of contrary, on witnesses to for the the test agents, unit to but mental include certain sufficiency factual is whether the evidence independent are contractors not those who establishing appellant’s the element of use perform the details of which or who tasks compel of threats of to force or violence not have the governmental unit does the complainant penetration to submit to the is n control); right to (Second) of Restatement so weak as to confidence undermine the Agency 220, e, (stating § g cmts. Johnson, jury’s 23 determination. S.W.3d important distinguish that “it is to be- standard, Applying at 11. we find the is not a agent tween a servant and an who sup- evidence to be to factually sufficient servant, ordinarily principal is not since port the used threats of physical the acts of liable for incidental compel force to submit. of duties negligence in the performance Accordingly, appellant’s we overrule fifth is not a serv- agent committed an who points appel- sixth error related term “em- ant” and that statutes lant’s assault conviction. the term ployee” largely replaced has only Because we find need evidence to “servant”). constituting support one situation lack of authorized An is agent is a who requirements consent to meet of Penal or man- 22.011(a)(1)(B), by principal § transact business Code this Court need age principal. affair on some behalf points not address of error Gonzales, 853 Cmty. Grace Church v. three and four his related to conviction 678, [14th (TexApp.-Houston 680 sexual assault. S.W.2d writ). court held in no As this Dist.] judgments affirm the trial court’s We Inc., Graphics, Robles Consolidated 862,982 827,178 cause numbers below. “independent contractor” are “agent” and categories. mutually not exclusive J., FROST, concurs. (TexApp.-Houston [14th S.W.2d FROST, Justice, KEM THOMPSON denied). Rather, party “a pet. Dist.] concurring. of another ‘who contracts act on behalf control ex- majority concluding subject The correct to the other’s [is] is conduct is respect physical that the Harris exercised suf- to his cept Nevertheless, Inc., be- independent an contrac- agent an and also ” holding of the Court Criminal cause (quoting Restatement tor.’ Id. (Second) precedent Agency (1958)). Ackley binding is Appeals extent of 14N case, correct to this court is this criminal agent an principal control the exerts over Ackley, this court must it. follow Under agent is an em- determines whether fourth third and overrule ployee independent or an contractor. I in the Accordingly, concur points. agent to determine The test whether judgment. court’s independent instead of an has employer is “whether the contractor details, progress, right control operations of the work.”
and methods Distribution, Inc. v.
Limestone Prods. (Tex.
McNamara, employment relationship, In an *14 only the end to be
employer controls not and de accomplished, “but also the means FERGUSON, Sidney Appellant, Frank accomplishment.” Accord tails of its Id. Court, right Supreme to the Texas Texas, Appellee. The STATE sev by considering to control is measured eral factors: 14-01-01159-CR, 14-01-01160-CR. Nos.
(1) independent nature of work- Texas, Appeals of Court of business; er’s (14th Dist.). Houston (2) furnish obligation the worker’s tools, 9, 2003.
necessary supplies, and mate- Jan. perform job; rials to 23, 2003. Rehearing Overruled Jan. right the worker’s to control
progress except of the work about results;
final
(4) the time which the worker
employed; and payment, by the method of whether job.
unit of time or
Id. upon majority
The evidence which the legally factually sufficient to
relies is finding was an
support Jail; and,
agent of the Harris be- employ- Ackley equates agents
cause
ees, is sufficient to this evidence Ackley,
the Harris Jail. See Texas Application Prod-
Supreme Court’s test Limestone
ucts, however, might yield a different re- Distribution,
sult. See Limestone Prods.