Edward Hewitt MacDonald v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued July 26, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00235-CR

____________

EDWARD HEWITT MACDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1046437

MEMORANDUM OPINION

A jury found appellant, Edward Hewitt MacDonald, guilty of the offense of sexual assault (1) and, after he pleaded true to the allegations in two enhancement paragraphs that he had two prior felony convictions, assessed his punishment at confinement for twenty-five years. In his sole point of error, appellant contends that the evidence is factually insufficient to support his conviction.

We affirm.

Factual Background

The complainant testified that on October 31, 2005, she and her girlfriend ate dinner, went to a Halloween block party, and then went home. The complainant had a "couple of margaritas and maybe two or three vodka drinks" in the span of "[r]ight over two" hours and then had a glass of wine at home. After they got home, around midnight, the complainant decided to go by herself to Lola's Bar, where she knew she could purchase powder cocaine. When she arrived at Lola's, she did not see the person from whom she normally bought cocaine. When she went up to the bar to order a drink, she stood next to appellant, whom she had never seen before, and spoke with him for the entire time that she was at the bar, mentioning to appellant that she had a "girlfriend." While she was at Lola's, the complainant had another two or three alcoholic drinks. Stating that six or seven such drinks over the course of an entire night is "not extraordinary" for her, the complainant "didn't feel that [she] was wasted" and had a clear memory of the night.

Appellant gave the complainant a business card with his name and telephone number on it, and she put the card in her purse. After she determined that her "dealer" was not going to show up at the bar, she asked appellant whether he knew anyone from whom they could purchase cocaine. Appellant told the complainant, "Let me make a quick phone call and if you don't mind driving us right around the corner, it's not too far. We could go get it." Appellant used his cellular phone to make a call and then told the complainant, "it's a deal." They decided to ride together, and the complainant volunteered to drive. The complainant and appellant drove to a location "right past Telephone Road," where they each paid twenty-five dollars for cocaine. When they left the location, the complainant was on the phone with her friend, Mark Ziefchek. She spoke with Ziefchek throughout the course of the night, making plans to go to his warehouse, where he was throwing a party. Appellant asked if they could stop at his storage unit, which was nearby, in order to "grab some more money."

The complainant and appellant then drove through an opened gate to the storage facility, and she parked the car. The complainant, who was "still kind of messing with [her] phone," thought that appellant was going to go into the unit to get some money. She described her car as a long, two-door car, with a console between the driver and passenger seats. While the complainant was using her phone, sitting in the driver's seat, appellant made a sexual comment. He said something about the possibility of sex, and ended the comment with, "Too bad because I've got a big dick." This was the first sexual comment of the evening. At this point, the complainant and appellant had already used some cocaine. The complainant was "kind of shocked" and told appellant that such a comment was inappropriate. However, she did not feel threatened, and, after appellant made another sexual comment, she, in a "half joking like" manner, told appellant that she would "kick [his] ass."

"All of a sudden in one instance," appellant was "over" the complainant, and she was "out the door, and [they] were out on the ground." As they fell out of the car, appellant landed on top of her with her back on the ground. The complainant used her legs to "maneuver [her] hands to wiggle to see if [she] could get out from underneath," causing her to slide along the ground backwards. Appellant was not very violent, but, by the weight of his right forearm across the complaint's chest and with his left hand holding onto her arm, he was able to prevent her from moving. She "cuss[ed]" at appellant, saying, "You mother fucker . . . You know, I know your name. I know . . . the people at Lola's know you. I am going to look you up." She thought that she was about to get away and tried to shove her knees up. Appellant told her to stop struggling and that she was going to make it worse. She then thought that she was going to be "murdered." Appellant told her to stop struggling and said, "I don't want to do anything to you. I just want to go down on you."

After appellant removed her pants, he "went straight to going down and having oral sex on [her]," placing his mouth on her sexual organ. She explained that she never consented to having sexual intercourse with appellant and, at this point, she was crying and "was still pissed." She did not try to get away because she did not think that she would be fast enough and thought that if she did attempt to escape, appellant still had his arms on her legs. If she was caught, "it would just make it worse."

Appellant performed oral sex on the complainant for an "exaggerated amount of time, over 30 minutes." Every once in a while, "it would just stop and words were said," with "lulls in between." She told appellant that she was freezing and asked if they could at least get back inside the car. When appellant agreed to get back inside the car, she told him to get in the car on the passenger's side, but he pushed the complainant into the car and said, "Stop fucking around." She entered through the driver's door and, after being pushed by appellant, ended up behind the passenger's seat. Appellant got into the backseat with the complainant and "apologized some more, started talking." When she asked for her pants back, appellant refused. She then asked appellant if he still wanted to go to her friend's party, telling appellant that her friend was still waiting.

In the backseat of the car, "just out of the blue," appellant grabbed both her legs, pulled her up, and again started performing oral sex. Then appellant, sitting upright behind the driver's seat, "took his pants off and started masturbating." Unable to get an erection, he said, "Girl, you're going to have to help me out here," and he grabbed the complainant behind her neck with his right hand and penetrated her mouth with his sexual organ. This lasted "probably three to five" minutes. During that time, appellant was not able to obtain an erection. When asked whether she consented, the complainant replied, "Absolutely not." The complainant explained that, up until this time, she had never been involved in any kind of a sexual act with a man.

Appellant then got "over" the complainant, started "masturbating again with his hands," positioned the complainant, and said, "Maybe this will work." Although still unable to obtain an erection, appellant was able to cause penetration of her sexual organ by placing his sexual organ inside her sexual organ. Afterwards, appellant "just went back to his seat real fast put his head in his hands and just more talking to himself apologizing." The complainant explained that they had sex for "over four hours," with the events having "many lulls and ups and downs."

As it started to become daylight, appellant asked the complainant to take him back to his truck at Lola's. She agreed, appellant let her grab her pants, and she put her clothes back on. Appellant then got out of the car and picked up some belongings, but the complainant could not drive away because appellant had her car keys. Appellant handed her the car keys after he sat in the passenger seat.

The complainant explained that, during the course of the entire evening, her friend, Mark Ziefchek, had tried to call her about eight times. Although she was able to speak with him sometimes during the lulls, she never told Ziefchek that she was in trouble because she thought that appellant would become more violent. As they were making "small talk" as the complainant drove appellant back to Lola's, appellant wanted to make sure that she had his telephone number. When they arrived back at Lola's at 6:00 a.m., the complainant pulled in behind appellant's truck. Appellant apologized about the events of the night and gave her a second business card. Appellant told the complainant his cellular phone number, and she wrote it down on the back of the business card. He then got out of her car and got into his truck.

After appellant got out of her car, she again called Ziefchek and then called for emergency assistance and went to Joe's Car Wash, where she met a police officer. She told the officer that she had been sexually assaulted and agreed to ride with the officer to have a rape examination performed at a hospital. At the hospital, the complainant felt sober and told a nurse that she had been raped and had used cocaine that evening.

The complainant further explained that she stopped fighting appellant because she was trying to think of a plan to get away and "[e]verything that [she] did [she] was physically forced to do, and it was to save [her] from going to the next level of being murdered." She conceded that appellant never slapped or hit her, never took her cellular phone away, and let her talk on the phone.

Dr. Adel Gindy testified that on November 1, 2005, he, assisted by Angela Adolph, performed a genital examination on the complainant and "there was no evidence of any forced entry to the genital area." However, he explained that sexual intercourse can happen without injuries regardless of whether both parties are consenting. Therefore, the absence or presence of an injury is not necessarily helpful in determining whether a sexual assault has occurred. The lab results showed that there was "some sperm" in the secretions in the specimen Gindy collected. Aside from the genital examination, Gindy observed "some bruises and abrasions" on the complainant's back.

Angie Adolph, a registered nurse, testified that the complainant was escorted into the hospital by a police officer and appeared "[v]ery quiet, withdrawn." The complainant was cooperative, and her hands were shaking. She smelled of alcohol, but did not appear to be intoxicated. The complainant's right wrist was bruised, with a "reddish purple" coloration indicating that the bruise was recent. There was a purple bruise on her left outer thigh and her "back to lumbar area" was "scraped up." The scrapes on her back appeared to be fresh injuries and were consistent with what the complainant said had happened.

Houston Police Department ("HPD") Officer B. Roberts testified that on November 7, 2005, he took a sworn statement from the complainant. During the interview, the complainant "was occasionally tearful, occasionally trembled." She "paused at times when she was talking about things that were going on," but was very forthright. The complainant identified appellant from a photo array. Roberts and the complainant drove to the storage facility where the sexual assault occurred and there were tire tracks and cigarette butts on the ground outside the storage shed. Inside the shed, Roberts found a business card from "MacDonald and Son." Roberts also observed scrapes and injuries to the complainant's body, consistent with her version of events.

Appellant testified that on October 31, 2005, he went to Lola's to have a few drinks and play pool. After shooting pool, he sat down by himself at the corner of the bar. The complainant came up to him, and he asked her what was wrong because she looked "depressed or sad or something." She told him that she was looking for some cocaine. The complainant acted like she was in a hurry, and the two did not speak for long prior to her inquiring about cocaine. Appellant told the complainant that he might know somebody, and he called an acquaintance from work and told him that he would come over to purchase some cocaine.

After buying the cocaine, he and the complainant "did a few bumps of the coke," (2) and he asked the complainant to drive by his storage unit so that he could get some more money. He did not enter the storage unit because it was not until they arrived there that he realized that he had left the keys to the unit inside his truck. Once they were parked at the storage unit, appellant and the complainant "did some coke" using the keys to his truck. He explained that he never took the car keys out of the complainant's car ignition. The two discussed the complainant's "sex life that she was a lesbian that she used sex toys and stuff with her relationship" and that it had been "a long time since she's been with a man." They both got out of the car "to get some fresh air" and appellant smoked a cigarette.

Outside of the car, the two "were just talking, small talk," and then "were hugging and kissing each other." The complainant "was kind of being real aggressive" and they "went to the ground and started still kissing and stuff." She "undid her pants and pulled her pants down, and [appellant] helped her take her pants off." The complainant was the person that removed her belt and pants, and appellant helped pull them off from her feet. The complainant never told appellant to stop or quit, and "never cried, screamed, nothing." Appellant described the complainant's demeanor as "like a nympho but real wild, real aggressive, moving around a lot." Appellant never threatened her, and she never told him to stop. The complainant told appellant that "she was really getting into it, and it felt very good" as appellant was performing oral sex on her.

After being outside for about fifteen minutes, the complainant told appellant that she was cold so he suggested that they get back inside the car. The two "did some more coke." Her cellular phone rang several times while they were in the car, and she answered the phone multiple times. After appellant performed oral sex on the complainant in the car, she performed oral sex on appellant for ten to fifteen minutes. When they engaged in intercourse, the complainant was "real aggressive, kind of like, you know, moving around a lot." When asked whether the complainant appeared to be enjoying the intercourse, appellant responded, "Most definitely." Afterwards, appellant was "real hot, sweating, perspiring; and [his] heart was beating kind of fast because the coke and . . . the sex." The complainant put her hand on appellant's chest and asked him if he was alright.

After intercourse, while the complainant was in the backseat, appellant got out of the car to put his clothes on. Appellant smoked a cigarette and used the restroom beside the storage unit, about fifteen to twenty feet from where the car was parked. At this time, the complainant's car keys were still in the ignition. Appellant noticed that the complainant had a bruise inside of her thigh, and one on her arm near her wrist. As they left the storage unit, appellant looked at his cellular phone and saw that it was around 5:30 a.m. He explained that he never apologized to the complainant at any time during the evening. After the complainant dropped off appellant at his truck, the next thing appellant heard about the night was about one week later, when he was arrested. Appellant agreed with the State's statement during cross-examination that he felt that the complainant was "framing him" for wrongdoing in order to avoid "getting into trouble" with her girlfriend. Appellant explained that he felt that the complainant was using him as a scapegoat because "she's probably going to get kicked out of her relationship with her girlfriend because she had an affair with a heterosexual man."

Standard of Review

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).Factual Sufficiency

In his sole point of error, appellant argues that the evidence is factually insufficient to support his conviction because, although the complainant positively identified appellant as sexually assaulting her, the complainant's testimony "was so thoroughly impeached and totally rebutted by cross examination of [S]tate witnesses and by defense witnesses leaving no credible evidence" that appellant sexually assaulted the complainant.

A person commits the offense of sexual assault if the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or

(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.

Tex. Pen. Code Ann. 22.011(a)(1) (Vernon Supp. 2006). A sexual assault is without the consent of the other person if "the actor compels the other person to submit or participate by the use of physical force or violence." Id. 22.011(b)(1). Here, the underlying indictment alleged that appellant committed sexual assault without the consent of the complainant under subsections (a)(1)(A), (a)(1)(B), and (a)(1)(C) of section 22.011 of the Penal Code by compelling her to submit and participate by the use of physical force and violence. See id. 22.011(a)(1), (b)(1). Appellant asserts that the sexual contact that occurred between him and the complainant was consensual.

In support of his argument that there was no credible evidence that a sexual assault occurred, appellant asserts that (1) Dr. Gindy, who performed the complainant's genital exam, "testified that from the exam, there was no evidence of any forced entry to the genital area and no injuries"; (2) the complainant testified that she was "drunk enough to be impaired" and had been using cocaine; (3) appellant's testimony "completely rebuts and denounces every element of assault and is completely consistent with the physical evidence, including the phone records, the DNA evidence, the doctor's testimony, and her so called injuries"; and (4) the "amount of cocaine use and alcohol consumption admitted by [the] complainant, and the fact that . . . Mark Ziefchek called a number of times and she spoke with him but did not tell him she was in trouble, also admitted by [the] complainant, make it impossible for any rational trier of fact to conclude that is was a sexual assault."

Although Dr. Gindy testified that there was no evidence of any forced entry to the complainant's genital area, he also testified that the absence of injury to the genital area is not necessarily indicative that a sexual assault did not occur. In fact, Dr. Gindy further testified that the complainant's vaginal exam results were consistent with either consensual or nonconsensual sexual conduct. Also, although the complainant was intoxicated and under the influence of cocaine at the time of the assault, this does not mean that she therefore consented to appellant's sexual assault. The jury was within its discretion to believe the complainant's version of events, wherein she claimed that she did not consent to the sexual acts, and to disbelieve appellant's testimony that the complained of sexual acts were consensual. We note that "[t]he testimony of a victim, standing alone, is sufficient to support a conviction for sexual assault." Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). Moreover, the jury is the sole judge of the credibility of the witnesses at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Finally, although the complainant spoke by cellular phone with her friend, Mark Ziefchek, a number of times during the night of the incident in question, the jury could have reasonably believed, consistent with the complainant's testimony, that the reason that she did not expressly ask for Ziefchek's help was that she was in fear of further retribution or aggression by appellant.

Thus, viewing the evidence neutrally, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that the complainant did not consent to the sexual contact and that appellant sexually assaulted the complainant.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Pen. Code Ann. 22.011(a)(1) (Vernon Supp. 2006).

2. During her testimony, the complainant explained that the most convenient way to use cocaine if you are out at a bar is to "use your keys and just get a lit bit on the end of your key." This method is referred to as a "bump."