James King v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00360-CR

James KING,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-3575

Honorable Mark Luitjen, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 6, 2005

AFFIRMED.

Appellant James King was convicted of sexual assault and sentenced as a habitual offender to life imprisonment. King raises three issues on appeal, contending the evidence is legally and factually insufficient to support his conviction, and that the trial court impermissibly commented on the weight of the evidence by permitting an expert witness to use the term survivor in her testimony. We affirm the trial court s judgment.

Background

On the evening of December 20, 2000, the complainant went to a nightclub in downtown San Antonio. The complainant did not own a car, so she and her roommate, Delina Lopez, rode to the nightclub with their friend Mae Dixon. The complainant testified that she consumed two alcoholic beverages before going downtown, and that she was sober when she arrived at the nightclub shortly before midnight. Upon arriving at the nightclub, the complainant went upstairs, danced, and consumed more alcoholic beverages. Over the course of the evening, the complainant drank at least five alcoholic beverages and became intoxicated. According to Lopez, the complainant exhibited symptoms of intoxication she lost her balance while she was dancing and nearly fell when they were walking to the restroom. Lopez had to reach out and steady the complainant.

At one point in the evening, King approached the complainant. They had met the night before at another nightclub. King asked the complainant if he could buy her drinks that evening, and the complainant declined his offer. Both Lopez and the complainant testified that King tried to dance with the complainant, but she was not interested in him and turned her back on him. The complainant also testified that King touched her inappropriately over her buttocks and inner thigh region, which she found offensive and did not invite. The complainant asked King to stop touching her and leave her alone.

The complainant was asked to leave the nightclub around 1:30 a.m (December 21, 2000). She and Lopez were walking downstairs when security noticed the complainant was intoxicated. An employee working at the front desk told the complainant she could not go back upstairs into the nightclub; she had to leave the premises because she was intoxicated. King approached and asked the complainant if she needed a ride home. Lopez heard the complainant tell him no, and Lopez explained that they would leave with Dixon. Lopez went back upstairs to search for Dixon.

The complainant testified that King persisted in wanting to take her home. King told the complainant Dixon informed him they were going to meet at IHOP and that it was all right for him to take the complainant home. King led the complainant outside and sat her down on a brick wall. The complainant did not see any security outside. King told the front desk employee that he would take the complainant home. The complainant testified she kept telling King she did not want him to take her home; she wanted to wait for Dixon. The complainant tried to push King s arm away but was unsuccessful. King s friend Eric appeared and took the complainant by her other arm. King and Eric led her to the parking lot. The complainant stated she pleaded with them to take her back to the nightclub. As they walked by a fire station, the complainant fell down. Although the fire station is open twenty-four hours a day, the complainant testified that she did not see anyone at the station. After the complainant fell down, King picked her up over his shoulder and carried her to his car. King placed the complainant in the back seat. The complainant testified that she was crying and asked them to let her go, and King assured her they were going to meet her friends at IHOP.

King drove to an apartment complex. The complainant was having difficulty walking and King carried her up the stairs. He knocked on the door of an apartment, and a man named Paul answered the door. King set the complainant down on a mattress that was on the living room floor, then went to the back to talk to Eric and Paul. They came back into the living room where King kneeled over the complainant. She unsuccessfully tried to push him off her and repeatedly told him to stop what he was doing. King pulled down the complainant s pants, unbuckled his pants, and told his friends to watch. The complainant asked King to wear a condom and he refused. King proceeded to have intercourse with the complainant while his friends watched. The complainant testified that she was physically unable to resist due to her intoxication.

A couple minutes later, there was a knock at the door. King pulled up his pants and answered it. The complainant pulled up her pants, walked over to Paul and asked him why he had not helped her, then walked under King s arm and exited the apartment. She walked downstairs and began knocking on apartment doors for help. She testified that King ran downstairs, tackled her in the grass, and sat on top of her. King told the complainant to be quiet and not tell anyone what had happened.

King and Eric drove her back to the nightclub. When they pulled into the parking lot of the nightclub, the complainant exited the vehicle and ran to her friend, Hassuan Jenkins. Jenkins testified the complainant was scared, crying, and shaking. She told Jenkins, Those guys raped me. That guy raped me, pointing at King. King exited the car and told Jenkins, No somebody else somebody raped her. Jenkins told King no, she said you raped her and began walking toward King. King got back in his vehicle and hastily exited the parking lot, hitting a wall and nearly hitting a security guard.

A nightclub employee phoned the police. The complainant was taken to an emergency room where nursing staff conducted a sexual assault exam. The complainant had red lacerations on her chest, indicating fresh injuries, and had trauma to her cervix consistent with forceful intercourse. The redness of the complainant s cervix indicated she had intercourse within six hours of arriving at the hospital. The heel of the complainant s boot was also torn off.

The complainant testified that she talked to King once after December 21, 2000. She went with him to his apartment because she allegedly was seeking answers about why he sexually assaulted her. The complainant stated that she did not have intercourse with King at that time; she only talked to him and refused his offer to pay her to keep quiet. King s former roommate, Camella Keys, testified that she saw the complainant at their apartment three times after December 21, 2000, once in King s bed without clothes on. Keys claimed that the complainant kept pursuing King, but that he was not interested in her. When asked to describe the complainant, Keys had much difficulty remembering any of her features. Keys testified that King admitted he had intercourse with the complainant on December 21, 2000, but maintained that it was consensual.

Mae Dixon s recollection of the evening was somewhat different. She testified she did not remember driving Lopez to the nightclub or seeing her there. She did recollect seeing Lopez at the emergency room, however. Dixon also testified that she asked the complainant if she needed a ride home, and the complainant stated she already had one. Dixon wrote in her statement that the complainant was not friendly with King during the evening of December 20th, but she testified at trial that the complainant had danced with King. Dixon s recollections were made more than two years after the incident.

Legal and Factual Sufficiency

In two issues on appeal, King contends the evidence is legally and factually insufficient to support his conviction for sexual assault. We disagree.

A. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, 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, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. When performing a legal sufficiency review, we may not act as a thirteenth juror, reevaluating the weight and credibility of the evidence and substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

The trier of fact, in this case the jury, is the sole judge of the credibility of witnesses and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). Due deference must be accorded the jury regarding the weight and credibility of evidence. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). The jury has complete discretion to reject or accept any or all of the testimony of any witness. Penegraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). As the trier of fact, the jury resolves any conflicts or inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Because the credibility of a witness testimony is the jury s province, inconsistencies in testimony should be resolved in favor of the jury s verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1981).

When reviewing the factual sufficiency of the evidence to support a conviction, we view all of the evidence in a neutral light, favoring neither party. Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). There is only one question to be answered 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? Id. at 484. There are two ways in which evidence may be factually insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at. 485. We will set aside the verdict only if the evidence supporting the verdict is so weak as to render the verdict clearly wrong and manifestly unjust. Id. at 481. A clearly wrong and manifestly unjust verdict occurs when the jury s finding shocks the conscience or demonstrates bias. Id.

B. Analysis

King complains that no evidence was adduced at trial supporting the allegation that he committed the offense of sexual assault. A person commits sexual assault when he knowingly or intentionally penetrates the female sexual organ of another person without consent. Tex. Pen. Code Ann. 22.011(a)(1) (Vernon Supp. 2004-05). A sexual assault is without consent where the actor compels the other person to submit or participate by the use of physical force or violence or where the actor knows the other person is unconscious or physically unable to resist. Id. 22.011(b)(1), (3). King argues there is no evidence he did not have consensual intercourse with the complainant.

The evidence adduced at trial shows that the complainant was intoxicated. She did not wish to leave the nightclub with King, and was so intoxicated she fell down. King physically carried her to his car and drove her to an apartment complex. Inside his friend s apartment, King placed the complainant on a mattress. The complainant attempted to push King off of herself and kept telling him to stop, but King proceeded to have intercourse with the complainant while his friends watched. Upon driving the complainant back to the nightclub, King exited his vehicle and told Jenkins, No somebody else somebody raped her. When Jenkins walked toward King, King got into his vehicle and fled. The complainant was taken to a hospital where a sexual assault exam revealed injuries to her chest and evidence of forceful intercourse.

Viewed in a light most favorable to the verdict, the evidence adduced at trial is such that a rational jury could have found that King intentionally or knowingly penetrated the female sexual organ of the complainant without her consent. King s first issue is overruled.

King also contends the evidence at trial was factually insufficient to support his conviction. King asserts the testimony at trial established that the complainant left with him voluntarily. He notes that the complainant never sought to tell a security guard she was being forced to leave against her will, and questions why she did not scream for help when they passed the fire station. King also asserts that there were inconsistencies in the testimony of the State s witnesses such that the jurors could not have found the complainant or any of the state witnesses credible. The jury, however, sifted through the varying testimony, made its determinations, and weighed the credibility of the witnesses. See Hanks v. State, 137 S.W.3d 668, 671-72 (Tex. Crim. App. 2004) (explaining that factual disputes almost always turn on witness credibility and the jury s determinations in such matters are given great deference). Viewing all the evidence presented at trial in a neutral light, the evidence supporting the verdict was factually sufficient to support the jury s finding that King committed the offense of sexual assault. The contrary testimony presented by King was not so compelling that the jury s finding was clearly wrong or manifestly unjust. King s second issue is overruled.

Comment on the Weight of the Evidence

In his third issue, King contends that the trial court impermissibly commented on the weight of the evidence by permitting an expert witness to use the term survivor when describing the procedures involved in administering a sexual assault examination. King argues that by allowing the expert to use the term survivor, the jury could infer that the trial court considered the complainant to be a sexual assault survivor. However, King did not object to the court s ruling as an impermissible comment on the weight of the evidence. It is well settled that almost every right, constitutional or statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); see generally Tex. R. App. P. 33.1 (to preserve error for appellate review, a defendant must object timely, state the specific grounds for the objection, and receive an adverse ruling from the trial court). The right not to have the trial court comment on the weight of the evidence is a right which may be waived. Moore v. State, 907 S.W.2d 918, 923 (Tex. App. Houston [1st Dist.] 1995, pet. ref d). We hold that King s failure to object at trial has waived his complaint on appeal.

King also contends the term survivor should have been excluded because its prejudicial effect was outweighed by its probative value under a Rule 403 balancing test. Tex. R. Evid. 403. King, however, did not object at the trial level on that basis. Accordingly, this argument is waived. Tex. R. App. P. 33.1. King s third issue is overruled.

Conclusion

Based on the foregoing discussion, we affirm the judgment of the trial court.

Catherine Stone, Justice

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