Kenneth Mac Gray, Jr. v. State of Texas--Appeal from 204th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Kenneth Mac Gray, Jr.

Appellant

Vs. Nos. 11-01-00148-CR, 11-01-00149-CR, & 11-01-00150-CR --

Appeals from Dallas County

State of Texas

Appellee

After Kenneth Mac Gray, Jr. waived his right to a jury trial, a bench trial was held. The trial court convicted appellant of the offenses of aggravated sexual assault[1] (Cause No. 11-01-00148-CR), assault causing bodily injury with a prior domestic violence conviction[2] (Cause No. 11-01-00149-CR), and aggravated assault[3] (Cause No. 11-01-00150-CR). In each case, appellant pleaded true to one enhancement allegation. In the aggravated sexual assault and the aggravated assault causes, the trial court made an affirmative deadly weapon finding. Upon convicting appellant, the trial court assessed his punishment in each cause at confinement for 15 years and fine of $1,000. We modify and affirm.

In his sole point of error, appellant contends that fundamental error existed based upon the insufficiency of the evidence. In his argument, appellant contends that he is entitled to an acquittal because the evidence supports an inference other than his guilt: that he and the complainant had consensual sex. Although the evidence does support such an inference, appellant is mistaken regarding the controlling law. In 1991, the Court of Criminal Appeals overruled the case doctrine relied upon by appellant as the test for an evidentiary sufficiency analysis. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Cr.App.1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000).

Therefore, we will address appellant=s sufficiency challenge under the appropriate standard of review. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).

The record shows that the complainant was appellant=s estranged wife and that the two had a rather tumultuous relationship in which both were guilty of violence. Appellant had prior convictions for assaulting the complainant. The present convictions arise from one incident which is detailed by the complainant in the record. The complainant testified that she went to appellant=s apartment one morning to pick up some money that he owed her. She stated that they talked for about ten minutes and that, when she walked toward him to get the money, he shoved her into the bedroom. Appellant reached down and grabbed a steak knife. He told her to shut up and threatened to kill her. Appellant threw the complainant on his bed, held the knife to her, and choked her until she almost passed out. He then tied her wrists behind her back with a long shoestring. The complainant feared that appellant would kill her. She stalled for time by telling appellant that she was thirsty. They went to the kitchen, and appellant got the complainant something to drink. With the knife still in his hand, appellant then led the complainant to the sofa where he unplugged the phone, pulled down his pants, sat down, forced her to her knees, and made her perform Aoral sex@ on him. The complainant testified that appellant=s sexual organ penetrated her mouth. Appellant then pulled the complainant up, pulled her panties down, pulled her on top of him, and Aput himself inside of [her].@ The complainant testified that appellant=s sexual organ penetrated her vagina. Shortly after getting dressed, the complainant was able to escape.

The complainant called her mother and her aunt from her car. The complainant=s aunt testified at trial that, when she called, the complainant was crying, hysterical, and very upset. The complainant called 911 from her aunt=s house and was told to contact the police department having jurisdiction in the location where the offense occurred. The complainant=s aunt dissuaded her from calling the police that day and suggested that perhaps the complainant could live with what had happened. The complainant, after spending the night in fear of what appellant might do next, reported the incident to the proper authorities the morning after the offense. Neither the police nor the complainant=s aunt noticed any visible physical injuries on the complainant. As a result of appellant choking her, the complainant continued to have pain in her throat and difficulty swallowing. Several days after the offense, she sought treatment for her throat from a physician.

Appellant testified at trial that there was no knife involved and that the complainant consented to the sexual relations they had on the day in question. The trial court, as the trier of fact, was free to disbelieve appellant=s testimony and accept the complainant=s testimony. We hold that the evidence is legally sufficient to support each of appellant=s convictions. The point of error is overruled.

The State requests that we modify the judgments which incorrectly reflect that the terms of a plea bargain were Aopen.@ The judgments accurately reflect that appellant pleaded not guilty. There was no plea bargain. Consequently, we grant the State=s request and order that the judgments be modified to reflect that the terms of a plea bargain agreement are Anot applicable.@

The judgments of the trial court are modified to replace the term Aopen@ with Anot applicable@; and, as modified, the judgments are affirmed.

PER CURIAM

June 27, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]TEX. PENAL CODE ANN. '22.021 (Vernon Supp. 2002).

[2]TEX. PENAL CODE ANN. '22.01 (Vernon Supp. 2002).

[3]TEX. PENAL CODE ANN. '22.02 (Vernon 1994).