No. 05-05-00570-CR
Opinion Filed December 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-73434-T. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice LANG.
Julio Jesus Contreras appeals the trial court's judgment convicting him of sexual assault, and assessing his punishment at ten years of imprisonment and a $5,000 fine. Contreras raises seven issues on appeal that generally argue two points: (1) the evidence is legally and factually insufficient to support his conviction for sexual assault; and (2) the trial court erred because its charge failed to properly instruct the jury. Contreras's issues are decided against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Contreras and C.B., the complainant, met through friends and, a few years later, they began dating. Contreras began living with C.B., her one year old daughter from a previous relationship, and her brother. During the time they lived together, Contreras and C.B. were sexually active. Eventually, Contreras became aggressive and controlling toward C.B. and her daughter, and her brother moved out. As a result of Contreras's attitude, C.B. stopped having sex with Contreras and, a week later, she ended their relationship by moving out of the apartment. When they broke up, C.B. told Contreras they could still be friends, but the relationship would not be sexual. Approximately four to six weeks after C.B. ended their relationship, Contreras telephoned and invited her to go out to DMX, a nightclub, with him and their friend, Aldo Lopez. Contreras told C.B. he would pay for everything and he was going to buy her an outfit to wear. C.B. agreed to go and arranged for her sister, R.G., to babysit her daughter. Contreras picked C.B. up at her apartment and drove her to DMX. Lopez arrived at DMX approximately thirty minutes later. Contreras was flirting with C.B., but she ignored him or would respond, "all right, whatever." R.G. called C.B. around midnight to see if she was going to pick up her daughter and their thirteen year old brother. R.G. thought their conversation was unusual because C.B. sounded intoxicated after a very short time span and in a hurry to hang up the phone. While they were at DMX, Contreras brought C.B. two beers. After the second beer, C.B. began to feel "fuzzy," and only vaguely remembers the lights coming on at the nightclub and walking to Contreras's car before waking up the next day. By 3:00 a.m., R.G. had not heard from or been able to reach C.B. by phone. R.G. heard a loud screeching sound in her apartment complex parking lot. She went outside and saw Contreras's car near her door. When Contreras got out of the car he was not wearing a shirt and told R.G. to give him C.B.'s daughter. R.G. complied. Contreras also told R.G.'s husband and brother that he just had sex with C.B.C.B.'s brother did not want to go with Contreras because he was scared. R.G. tried to get C.B.'s daughter back, but Contreras put her in the car and locked the doors. R.G. and her younger brother went up to the car where they saw C.B. sleeping on the seat, which was reclined all the way back. They began banging on the windows and calling her name, but C.B. did not wake up. Contreras yelled at them to get away from the car because C.B. did not have any clothes on the bottom half of her body. Contreras reversed the car quickly, almost hitting another car in the parking lot, and sped away. R.G. went inside her apartment and tried to call C.B., but there was no answer. Contreras answered one of R.G.'s calls and told her they got home safely and he would have C.B call her in the morning. Around 10:30 a.m. the next morning, C.B. woke in her bed with her daughter and rolled over to find Contreras lying next to her. C.B. felt lightheaded, was wearing different clothes than she had put on the night before, and her caller I.D. showed thirty-two calls from R.G.C.B. asked Contreras what happened because she did not remember getting her daughter, going home, or changing her clothes. Contreras replied, "Oh, Mamise (phonetic), I had a good time last night. There wasn't anything you didn't let me do," and "You even let me do it through the bumpies." C.B. became angry. In response to her anger, Contreras stated he was just joking, they did not do anything, and all they did was go out, pick up her daughter, and go to her apartment. When C.B. went into the bathroom that morning, she saw "hickies" or bruises on her neck, which had not been there the night before. After seeing the marks on her neck, C.B. asked if something had happened and Contreras told her nothing happened. Also that morning, R.G. called C.B. to ask how she was and C.B. told R.G. she was fine. Later that day, Contreras took C.B. and her daughter to lunch. At lunch, he again told C.B. there was not anything she did not let him do the previous night and she even let him do it through the "bumpies." Again, C.B. became angry and Contreras denied that it actually happened. About a week later, Contreras left a disposable camera at Eckerd's to have the photographs developed. Ellen Bemrich, the photo manger, developed the photographs, which depicted graphic sexual activity. Bemrich called the police because the woman in the photographs appeared unconscious or dead and the man taking the photographs was exposing the woman's genitalia rather than the woman doing it herself. The police responded and asked Bemrich to call them when the man returned. When Contreras returned to the store, Bemrich recognized his watch from the photographs and notified the police. The police arrived and asked Contreras to whom the photographs belonged. Contreras told the police he was just picking them up for a friend. During their conversation, the police observed that Contreras's car was similar to the car in some of the photographs and pointed this out to him. Then, Contreras admitted the photographs were his and said, "She was passed out. Please don't tell her about the pictures. She will be really pissed." The police told Contreras they needed to know the identity of the woman in the photographs because they were concerned for her welfare. Contreras provided the police with C.B.'s name, her place of work, and her phone number. The police went to C.B.'s place of work. In response to their questions, C.B. told them she knew Contreras, had gone out with him the previous week, and when they went out, after a couple of beers, she did not remember what happened. The police told C.B. that Contreras had taken photographs depicting Contreras lifting up her skirt and pulling down her shirt, with his penis in her face, and having both vaginal and anal sex with her. C.B. told the police she did not remember these activities and she wanted to press charges. During the next few days, Contreras called C.B.'s cell phone several times, but she did not answer. When C.B. finally did answer the phone, Contreras told her, "It's not what you think." Eventually, C.B. went to the police station where the detective showed her the photographs. C.B. identified herself, Contreras's hands and body, and her daughter's foot in the photographs. Also, she identified the locations in the photographs as Contreras's car and her apartment. Contreras continued to call C.B. and state he was sorry. Also, Contreras gave C.B. a car after her car was totaled in an accident. To thank him for the car, C.B. gave Contreras a photograph of her and her daughter. However, after a couple of weeks, C.B. returned the car because Contreras wanted her to go to the courthouse with his lawyer and sign an affidavit of nonprosecution. Also, C.B. changed her telephone number to stop Contreras from calling her. After a trial, the jury found Contreras guilty of sexual assault and assessed his punishment at ten years of imprisonment and a $5,000 fine. II. LEGAL AND FACTUAL SUFFICIENCY
In issues one and two, Contreras argues the evidence is legally and factually insufficient to support his conviction for sexual assault because it fails to prove lack of consent. A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id. 1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). 2. Factual Sufficiency
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
A person commits sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person by any means without that person's consent. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2005). "Consent" is defined as assent in fact, whether it is express or apparent. See Tex. Penal Code Ann. § 1.07(a)(11) (Vernon Supp. 2005). A sexual assault is without the consent of the other person if: (1) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; (2) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; or (3) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge. See Tex. Penal Code Ann § 22.011(b)(3), (5), (6). Evidence that the victim of a sexual assault was unconscious due to voluntary intoxication is sufficient to prove lack of consent. See Elliot v. State, 858 S.W.2d 478, 485 (Tex.Crim.App. 1993). Due deference must be given to the jury's decision to credit a sexual assault victim's testimony that she did not consent to sexual intercourse with the defendant. See Casey v. State, 160 S.W.3d 218, 224 (Tex.App.-Austin 2005, pet. granted). When the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant's consent and places his intent in issue. See Rubio v. State, 607 S.W.2d 498, 501 (Tex.Crim.App. 1980); Wiggins v. State, 778 S.W.2d 877, 884-85 (Tex.App.-Dallas 1989, pet. ref'd); see also Rickerson v. State, 138 S.W.3d 528, 531 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); Brown v. State, 96 S.W.3d 508, 512 (Tex.App.-Austin 2002, no pet.); Webb v. State, 995 S.W.2d 295, 298 (Tex.App.-Houston [14th Dist.] 1999, no pet.). A defendant's intent to engage in the alleged conduct without the complainant's consent cannot be inferred from the mere act of intercourse with the complainant. Brown, 96 S.W.3d at 512. C. Application of the Law to the Facts
Contreras argues the evidence is legally and factually insufficient to support his conviction for sexual assault because it fails to prove lack of consent. He argues § 22.011(b)(3) and (5) is conjunctive and, although the evidence proves C.B. was unconscious or unaware, the evidence does not prove C.B. did not consent. He contends the evidence "proves [C.B.] did consent to sex, that she did in fact pass out at some point, and that [Contreras] continued to have sex with her while she slept, even taking the pictures to remember it by," and that consent is not revoked when a person falls asleep or passes out. Further, he contends the evidence that he tucked C.B. in, after helping her on with her regular pajamas, thoughtfully laid the baby next to her and happily laid down on the other side of the bed, praised C.B. the next day for her affection toward him the night before, and renewed his pursuit of C.B demonstrate he did not intend to sexually assault C.B. Also, Contreras argues, under the doctrine of chances, the evidence of several instances of consensual sex and the State's failure to offer evidence of similar extraneous offenses demonstrate that C.B. consented. The State responds that C.B.'s testimony and Contreras's actions after the sexual assault was discovered show C.B. did not consent. Also, the State responds that the doctrine of chances does not apply because the State did not offer extraneous offenses to prove Contreras's intent. Viewing the evidence in the light most favorable to the verdict, there was evidence that C.B. did not consent. C.B. stated after she left Contreras she told him they could be friends and she would not kiss him, hug him, or hold his hand. When C.B. moved into her own apartment Contreras stopped by a couple of times, but the visits were brief and he never stayed the night. Also, C.B. stated she did not give Contreras consent to do any of the things depicted in the photographs. Further, C.B. stated when Contreras told her what happened and she became angry he denied it and after she spoke with the police he called her and told her he was sorry. The record also shows Contreras initially denied to the police that the photographs were his and, when he did admit they were his, he asked the police not to tell C.B. because, "She'll be really pissed." Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Contreras was guilty of sexual assault. It is clear that Contreras's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Contreras's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. Also, Contreras's reliance on the "doctrine of chances" is misplaced. He argues under the "doctrine of chances," his defense of consent is more probable because there was no evidence he previously engaged in nonconsenual sex and C.B. engaged in consensual sex with Contreras on multiple occasions. The "doctrine of chances" is a theory that is used in the admission of extraneous offenses. See, e.g., Plante v. State, 692 S.W.2d 487, 491-92 (Tex.Crim.App. 1985). The "doctrine of chances" is the principle that evidence of the repetition of similar unusual events over time demonstrates a decreasing probability that those unusual events occurred by chance. See Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005). A defendant may use the "doctrine of chances" defensively if the series of unusual events, alone or with other evidence, tends to negate the defendant's guilt of the crime charged. See Fox v. State, 115 S.W.3d 550, 561 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Here, the evidence of Contreras's consensual sexual relationship with C.B. was admitted. Because the evidence was admitted, Contreras's complaint that the "doctrine of chances" made his defense of consent more probable is actually an attack on the credibility and weight assigned to that evidence by the jury. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Contreras's conviction of sexual assault. Contreras's first and second issues on appeal are decided against him. III. JURY CHARGE ERROR
In issues three through six, Contreras argues the trial court erred because its charge to the jury: (1) instructed the jury on voluntary intoxication; (2) defined reasonable doubt; (3) instructed the jury on a theory of consent not raised by the evidence; and (4) instructed the jury on good conduct time. Contreras did not object to the jury charge at trial. A. Standard of Review
Texas Code of Criminal Procedure article 36.19 prescribes the manner of appellate review of jury charge error. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981 Supp. 2005). Appellate review of error in a jury charge involves a two-step process: (1) the determination of whether an error actually exists in the jury charge; and (2) an evaluation of whether sufficient harm resulted from the error. See Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994). B. Charge on Voluntary Intoxication
In his third issue, Contreras argues the trial court erred when it instructed the jury on voluntary intoxication because there was no evidence showing his intoxication was related to the sexual assault. Contreras did not object to this issue at trial. The State responds that the trial court properly instructed the jury on voluntary intoxication because there was evidence Contreras had been drinking and was intoxicated. 1. Applicable Law
Voluntary intoxication is not a defense to the commission of a crime. See Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003 Supp. 2005). Where there is any evidence of intoxication, it is appropriate for the trial court to instruct the jury that voluntary intoxication is not a defense. See Taylor v. State, 885 S.W.2d 154, 158 (Tex.Crim.App. 1994). The defendant need not advance a defense based on intoxication for the trial court to appropriately instruct the jury on voluntary intoxication. See Taylor, 885 S.W.2d at 158; see also Haynes v. State, 85 S.W.3d 855, 858 (Tex.App.-Waco 2002, pet. ref'd); Huerta v. State, 933 S.W.2d 648, 650 (Tex.App.-San Antonio 1996, no pet.). 2. Application of the Law to the Facts
The evidence showed Contreras was intoxicated. C.B. stated Contreras and she were drinking alcohol at the nightclub. R.G. stated Contreras's car screeched into her apartment complex parking lot, he was not wearing a shirt, she could tell he was drunk by the way he was acting, and he staggered a little bit. Also, R.G. stated her younger brother did not want to go with Contreras or R.G. to give Contreras C.B.'a daughter because he saw Contreras's condition and was scared. Regardless of whether Contreras advanced a defense based on intoxication, there was evidence he was intoxicated so it was appropriate for the trial court to instruct the jury that voluntary intoxication is not a defense to the commission of a crime. See Taylor, 885 S.W.2d at 158. We conclude no error actually exists in the jury charge with respect to the charge regarding intoxication. Contreras's third issue on appeal is decided against him. C. Definition of Reasonable Doubt
In his fourth issue, Contreras argues the trial court committed structural error by including a definition of reasonable doubt in the jury charge. Contreras did not object to this issue at trial. The State responds that this Court has repeatedly rejected Contreras's argument. 1. Applicable Law
In Geesa v. State, the Texas Court of Criminal Appeals held the term "reasonable doubt should be defined in the jury charge and directed trial courts to include a six paragraph instruction in the jury charge. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991); O'Canas v. State, 140 S.W.3d 695, 699 (Tex.App.-Dallas 2003, pet. ref'd). Almost nine years later, the Texas Court of Criminal Appeals rejected paragraphs [4] and [5] of the Geesa instruction because they provided a "redundant," "useless," and "ambiguous" definition of reasonable doubt. See Paulson v. State, 28 S.W.3d 570, 572 (Tex.Crim.App. 2000); see also O'Canas, 140 S.W.3d at 699-700. In Paulson, the Texas Court of Criminal Appeals determined "[T]he better practice is to give no definition of reasonable doubt at all to the jury." Paulson, 28 S.W.3d at 572. However, the Texas Court of Criminal Appeals did not state in Paulson that the sentence in paragraph [3] of the Geesa instruction, which states "It is not required that the prosecution prove guilty beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt," defined "beyond a reasonable doubt." See O'Canas, 140 S.W.3d at 701. This sentence "simply states the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt." See Id. at 701; see also Bratton v. State, 156 S.W.3d 689, 696 (Tex.App.-Dallas 2005, pet. ref'd). This sentence "does not define reasonable doubt." See O'Canas, 140 S.W.3d at 701-02; see also Bates v. State, 164 S.W.3d 928, 931 (Tex.App.-Dallas 2005, no pet.). 2. Application of the Law to the Facts
Contreras complains the trial court erred when it included the following language in the jury charge: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." We have already rejected the precise argument made by Contreras in O'Canas. See O'Canas, 140 S.W.3d at 699-702; see also Bates, 164 S.W.3d at 931; Bratton, 156 S.W.3d at 695-96. Accordingly, we conclude no error actually exists in the jury charge with respect to the statement regarding reasonable doubt. Contreras's fourth issue is decided against him. D. Charge on Theory of Consent
In his fifth issue, Contreras argues the trial court's jury instruction on one of the theories for determining there was a lack of consent destroyed his defense that the sex was consensual and was not raised by the evidence. Specifically, he argues the jury should not have been instructed that "[s]exual assault is without the consent of the other person if: . . . the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge." See Tex. Pen. Code Ann. § 22.011(b)(6). Contreras did not object to this issue at trial. The State responds that there was legally sufficient evidence to support the jury's determination that Contreras impaired C.B.'s power to appraise or control her conduct by administering a substance without her knowledge. In the alternative, the State responds there was sufficient evidence to support the jury's verdict based on the remaining two theories for lack of consent in the jury charge. 1. Applicable Law
A trial court must charge the jury on the "law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005). If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. See Alexander v. State, 906 S.W.2d 107, 111 (Tex.App.-Dallas 1995, no pet.); Willis v. State, 802 S.W.2d 337, 342 (Tex.App.-Dallas 1990, pet. ref'd); see also Moore v. State, 82 S.W.3d 399, 408 (Tex.App.-Austin 2002, pet. ref'd). Section 22.011(b) of the Texas Penal Code provides the statutory definitions establishing when a sexual assault is without consent. See Tex. Pen. Code Ann. § 22.011(b). 2. Application of the Law to the Facts
The record shows Contreras purchased two beers for C.B. outside of her presence. After the second beer, C.B. began to feel "fuzzy," and only vaguely remembers the lights coming on at the nightclub and walking to Contreras's car before waking up the next day. Also, R.G. stated C.B. did not wake up when she and their younger brother banged on Contreras's car window and called C.B.'s name. The evidence at trial supported the statutory definition of "without consent" under § 22.011(b)(6) of the Texas Penal Code. Accordingly, we conclude no error actually exists in the jury charge with respect to the definition of "without consent" as provided in § 22.011(b)(6) of the Texas Penal Code. Contreras's fifth issue is decided against him. E. Charge on Good Conduct Time
In his sixth issue, Contreras argues the trial court erred in its punishment charge when it instructed the jury on good conduct time because he was convicted of sexual assault and not eligible for good conduct time. Contreras did not object to this issue at trial. The State responds that during the punishment portion of the trial, the trial court was required by law to instruct the jury on good conduct time. 1. Applicable Law
Article 37.07, § 4(a) of the Texas Code of Criminal Procedure requires a trial court to instruct the jury in the punishment charge regarding the application of parole law if the jury has convicted the defendant of an offense listed in article 42.12, § 3g(1) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2005); Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). In particular, article 37.07, § 4(a) requires an instruction that "the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time." See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Sexual assault is an offense listed in article 42.12, § 3g(1) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(1)(H) (Vernon Supp. 2005). 2. Application of the Law to the Facts
The jury found Contreras guilty of sexual assault pursuant to § 22.011(a) of the Texas Penal Code. Contreras is not eligible for good conduct time pursuant to Texas Government Code § 508.149(a)(6). See Tex. Gov't Code Ann. § 508.149(a)(6) (Vernon 2004). However, the trial court was required to instruct the jury on good conduct time pursuant to Texas Code of Criminal Procedure article 37.07, § 4(a) because sexual assault is an offense listed in article 42.12, § 3g(1). See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a), 42.12, § 3g(1)(H). We conclude no error actually exists in the jury charge with respect to the trial court's instruction regarding good conduct time. Contreras's sixth issue is decided against him. IV. JUROR NOTE-TAKING
In issue seven, Contreras argues the trial court abused its discretion because it failed to substantially comply with the mandated procedure regarding juror note-taking. Specifically, Contreras argues the trial court failed to comply with the cautionary steps outlines in Price. See Price v. State, 887 S.W.2d 949, 954-55 (Tex.Crim.App. 1994) (en banc). The State responds that Contreras has not preserved his complaint for appellate review. In the alternative, the State responds that the trial court substantially complied with the cautionary requirements in Price and Contreras has failed to demonstrate he suffered any harm. A defendant must make a timely objection at trial to preserve a complaint concerning juror note-taking. Shannon v. State, 942 S.W.2d 591, 596 (Tex.Crim.App. 1996) (en banc); Foster v. State, 976 S.W.2d 732, 734-35 (Tex.App.-Tyler 1998, pet. ref'd); Mata v. State, 939 S.W.2d 719, 726 (Tex.App.-Waco 1997, no pet.); see also Shelley v. State, 101 S.W.3d 606, 609 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (complaint preserved because defendant objected). Contreras did not object to the trial court allowing the jurors to take notes. The record shows the trial court allowed the jurors to take notes and provided them with clipboards. Also, the trial court admonished the jury at the time it was impaneled that they were to keep their notes private, and the court reporter is the official note-taker. The record does not show whether any jurors actually took notes or whether the notes, if any, were used during deliberations. See Foster, 976 S.W.2d at 735. We refuse to speculate as to facts not included in the record. See Hubbard v. State, 892 S.W.2d 909, 910 (Tex.Crim.App. 1995). We conclude Contreras has failed to preserve his complaint for appellate review. Contreras's seventh issue is decided against him. IV. CONCLUSION
The evidence is legally and factually sufficient to support Contreras's conviction for sexual assault. The trial court did not err when it included in its charge to the jury: (1) an instruction on voluntary intoxication; (2) the legally correct proposition that the prosecution's burden is to establish proof beyond a reasonable doubt and not all possible doubt; (3) the theory that sexual assault is without the consent of the other person if the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; and (4) an instruction on good conduct time. Contreras failed to preserve for appellate review his complaint that the trial court abused its discretion because it failed to substantially comply with the mandated procedure regarding juror note-taking. The trial court's judgment is affirmed.