SATAR KHADIM ALYASIRI, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 2, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01095-CR
............................
SATAR KHADIM ALYASIRI, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80386-07
.............................................................
MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Fillmore
Opinion By Justice O'Neill
        A jury convicted appellant Satar Khadim Alyasiri of sexual assault and sentenced him to eleven years' imprisonment. In two issues, appellant argues he received ineffective assistance of counsel, and the evidence is both legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Background
        Complainant Rachael Cockrell was a known alcoholic, who often drank over a gallon of vodka in two days. When she started drinking, she would continue until she passed out. Susan Cockrell, her mother, described her daughter as a “totally out of control person” when she was under the influence of alcohol and stated complainant would become aggressive, hostile, and sneaky. Complainant also suffered from depression and bipolar disorder. Because of these issues, her mother checked on her often, usually at least two times a day.
        On the evening of August 26, 2006 at approximately ten p.m., Cockrell went to complainant's house, which was a few houses down the street from her own residence. The lights were off, and complainant did not respond to her knocking. Cockrell let herself in with her key because she knew complainant had been drinking. She found complainant asleep in the bedroom, so she locked the door and left.
        Around midnight, complainant called Cockrell and asked if she was outside complainant's house because someone was knocking and ringing the doorbell. Cockrell told her not to answer the door and said she would be down shortly. Cockrell testified she could hear the knocking and the ringing doorbell over the phone.
        When complainant asked who was at the door, appellant responded. Complainant had met appellant at Lifetime Fitness, where they struck up a casual relationship. He tried to help complainant get a job and also asked her out to a hookah lounge, despite knowing she was in a serious relationship.
        Complainant testified she opened the door after recognizing appellant. He was visibly upset and forced his way inside her home. He locked the door and became forceful with her. He then pushed her over a chair, pulled down her pajama shorts and underwear and raped her both vaginally and anally. Complainant testified when appellant finished, he said, “Now you finally got what you deserved.”
        Within five to seven minutes after receiving complainant's phone call, Cockrell approached the house. She testified it was dark inside, and she did not see a car parked out front. When complainant failed to respond to her knock, she again used her key to enter. She saw her daughter come out of the shadows looking scared and confused. She then saw appellant tucking in his shirt and zipping up his pants. When Cockrell confronted him, appellant claimed they had recently returned from a date. Because she had previously checked on her daughter and knew she had been sleeping, Cockrell called him a liar. Appellant acted “sheepish and [was] nervously trying to make some excuse.” She then told him to leave. After appellant left, complainant told Cockrell appellant raped her, so they called the police. Before officers arrived, Cockrell observed fluid, consistent with seminal fluid, dripping down complainant's leg and onto the chair.
        Detective Richard Manuel arrived at the home around one a.m. He took photographs of the scene and swabbed the chair for DNA. He testified there was no evidence of forced entry into the house. After officers questioned complainant and Cockrell, officers escorted them to the hospital.
        Complainant fell asleep in the hospital waiting room and when she awoke three hours later for a rape exam, she was extremely hostile and aggressive and refused the exam. However, Cockrell agreed to give complainant's underwear to the nurse, who sealed and returned them to her. Three days later, Cockrell turned the sealed bag over to Detective BJ Watkins.
        Later in October, Detective Watkins obtained complainant's and Cockrell's statements regarding the incident. Although complainant could only remember appellant's first name, Detective Watkins tracked his last name through cell phone records. He then obtained appellant's photograph and created a lineup. Both women identified appellant in the lineup. After the identification, Detective Watkins obtained a search warrant for a buccal swab from appellant so the buccal sample could be tested against complainant's underwear.
        When Detective Watkins visited appellant at his place of employment, a Thrifty Car Rental, appellant cooperated and provided the buccal sample. Appellant denied having sex with complainant and claimed he was married with children. He further said it was against his culture to engage in such activities.
        After learning appellant's buccal sample matched the sample from complainant's underwear to a certainty in the quadrillions, Detective Watkins requested an arrest warrant on January 3, 2007. He tried to execute the warrant at Thrifty Car Rental, but when appellant saw the officers, he “took off at a high rate of speed” in a rental SUV. Detective Watkins felt he was fleeing the scene. Officers later waited outside appellant's apartment, and Officer Todd Wollum arrested appellant, without incident, on January 7, 2007.
        Officer Wollum testified that while he was transporting appellant to the station, appellant asked how long things would take because he had plane tickets to go back to his home country of Iran, and he did not want the arrest to interfere with his plans. Officer Wollum further testified appellant had been in the United States since the nineties and had not been home in a long time.
        The jury convicted appellant of sexual assault and sentenced him to eleven years' imprisonment. This appeal followed.
Legal and Factual Sufficiency of the Evidence
        In his second issue, appellant argues the evidence is both legally and factually insufficient to support his conviction. He focuses on complainant's lack of credibility because of her known drug and alcohol problems and her mental disorders. He also focuses on the fact the police waited over four months to arrest him, which according to appellant indicates they did not believe complainant's allegations.
        In conducting a legal sufficiency review, we view the evidence 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. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.).         When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only if the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. at 705. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Id. at 704-05.
        Despite Cockrell's testimony regarding the events as she witnessed them on August 26, appellant argues her testimony did nothing except establish that appellant and complainant engaged in sexual activity. It does not, however, prove the encounter was non-consensual. He further contends the only evidence the encounter was non-consensual came from complainant, who was an unreliable witness and “wholly discredited by her own mother.” Thus, the evidence is factually insufficient.
        While the jury heard testimony regarding complainant's past drug and alcohol abuse, her lying, and even her violent past, which included stabbing her boyfriend and being charged with aggravated assault with a deadly weapon after attacking her mentally-challenged uncle with a knife, we cannot conclude the evidence is factually insufficient to support appellant's conviction.
        In a sufficiency review, the complainant's testimony alone is sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). The jury heard complainant testify that appellant showed up at her home late at night and was upset. She further detailed how he forcefully entered her home after she opened the door, pushed her over a chair, held her down, and raped her both vaginally and anally. She testified she did not give consent to intercourse and tried to stop him, but he was too strong. Her account of the events was further corroborated by her outcry to her mother a short time later and her mother's testimony of events, which included the following: (1) checking on her daughter a few hours before the attack and finding her asleep, (2) observing no lights on in the home or any car parked out front despite appellant's claim they recently returned from a date, (3) noticing complainant's scared and confused demeanor when she entered the home, and (4) seeing seminal fluid leaking down her leg. The jury also considered appellant's attempt to flee from police when they first tried to arrest him and later after his arrest, he admitted his plans to leave the country. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (noting evidence of flight is admissible as circumstance from which inference of guilt may be drawn).
        The jury heard contrary evidence that the two may have been involved in a consensual relationship based on their interactions at the gym, appellant's attempt to get her a job, their outing to the hookah lounge, and the numerous telephone calls between the two that occurred before and after the attack. They also heard testimony from Detective Watkins that appellant denied having sex with complainant and testimony from Cockrell that appellant claimed they were on a date on the night of the attack. Lastly, the jury knew complainant made another rape allegation against appellant three days after the incident in question, which was later determined to be false.
        However, the jury was the sole judge of the weight and credibility of the evidence and therefore responsible for resolving these conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Steadman v. State, 280 S.W.3d 246-47 (Tex. Crim. App. 2009) (acknowledging in a factual sufficiency review, an appellate court may not conclude evidence is insufficient because there are reasonably equal competing theories). Thus, despite complainant's less than perfect background, it was within the jury's province to believe her and her mother's testimony. Considering the evidence in a neutral light, we can not conclude the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, nor is the evidence supporting the conviction outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Lancon, 253 S.W.3d at 705. Thus, the evidence is factually sufficient to support appellant's conviction.
        Appellant also argues the evidence is legally insufficient because the investigating officer waited four months to obtain and execute an arrest warrant, which according to appellant indicates they did not believe complainant's story. Based on the record, appellant's contention is unfounded. Detective Watkins explained officers do not arrest someone based on rape allegations alone, especially if DNA evidence is involved. He testified it is better to complete the investigation before they file; therefore, they did not immediately file charges because they needed to obtain appellant's last name, obtain a buccal swab from him, and then confirm DNA test results. Detective Watkins also stated there “wasn't any doubt” a rape occurred. Thus, the delay in charges had more to do with the police thoroughly investigating and preparing the case against appellant rather than doubting complainant's story. Furthermore, it was the jury's role, as the judge of credibility, and not the police, to determine whether to believe complainant. Jackson, 443 U.S. at 319. Reviewing the aforementioned evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction.
        Because the evidence is both legally and factually sufficient to support appellant's conviction, we overrule appellant's second issue.
Ineffective Assistance of Counsel
        In his first issue, appellant claims defense counsel was ineffective because she failed to properly interpret cell phone records of calls between appellant and complainant. Specifically, she interpreted and represented the length of the numerous phone calls between the two parties in minutes rather than seconds. Thus, when counsel questioned complainant about the calls, counsel argued some of the calls lasted as long as thirty to forty-five minutes when they actually lasted less than a minute. Appellant claims this mistake undermined his defensive theory that he and complainant were involved in a consensual relationship.
        To prevail on a claim of ineffective assistance of counsel, appellant must show counsel's representation fell below an objective standard of reasonableness, and a reasonable probability exists the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        Despite trial counsel's failure to interpret the cell phone records correctly, we cannot conclude this single error establishes her representation fell below an objective standard of reasonableness. Although a single egregious error may be sufficient to support a claim of ineffective assistance, the standard should be reviewed “by the totality of counsel's representation and not by isolated acts or omissions of trial counsel.” Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990). Counsel thoroughly cross-examined both Cockrell and complainant regarding her relationship with appellant in an attempt to show she consented to the sexual encounter. The jury heard testimony she accepted rides from appellant on numerous occasions, used information from him to try and get a job, accompanied him to a hookah lounge, and contacted him before and after the rape occurred. Counsel elicited all of this testimony as a further attempt to establish an on-going relationship between appellant and complainant.
        In addition, counsel attempted to show complainant's instability and unreliability as a witness through a thorough examination into her drug, alcohol, and mental problems. She also questioned complainant about her violent tendencies and another incident three days after the charged offense in which she inaccurately claimed appellant assaulted her again. As the State notes, “counsel presented a compelling story of a delusional, alcoholic girlfriend whose testimony should not be credited by the jury.” The phone calls were only a small part of the defense. In fact, counsel's reference to the phone records amounted to less than four pages of the approximate forty-page cross-examination.
        Thus, based on the totality of counsel's representation, we cannot conclude her actions fell below an objective standard of reasonableness based on her misinterpretation of the cell phone records. Further, based on the evidence establishing his guilt, appellant has failed to show a reasonable probability exists the results of the proceedings would have been different in the absence of counsel's errors. Strickland, 466 U.S. at 687-88, 694; Bone, 77 S.W.3d at 833. We overrule appellant's first issue.
Conclusion
        Having overruled appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081095F.U05