Keith Patrick McKay v. The State of Texas--Appeal from 349th District Court of Houston County

NO. 12-05-00282-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

 TYLER, TEXAS

KEITH PATRICK MCKAY, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant Keith Patrick McKay of aggravated sexual assault, injury to an elderly individual, burglary of a habitation, and burglary with intent to commit an assault. The jury assessed his punishment at imprisonment for life. Appellant complains that the evidence is factually insufficient to support his conviction and that the trial court erred in allowing the testimony of Officer Ben Gardner about a past statement made by Appellant s alibi witness. We affirm.

Background

T.M., the victim, was an eighty-one year old widow who lived alone. Sometime between 2:30 a.m. and 6:30 a.m., an intruder kicked down her front door, entered the house, and came down the lighted hallway to the bedroom where T.M. slept. He demanded her purse. She said she did not have it. The intruder became enraged and beat her severely around the face and chest. In an effort to get her to tell where her money was, her assailant stuck his finger in T.M. s rectum. Her assailant left the house apparently empty handed. T.M. lay on the floor for an undetermined period, then made it to her vehicle and drove to the house of a neighbor, left her car in the street, and managed to walk to the house. Shocked to see her friend with a swollen face and bleeding from the mouth and nose, Ms. Gray asked her what happened. T.M. replied, [T]he boy next door beat me up.

Ms. Gray called the police and the ambulance service. T.M. was taken to the hospital emergency room. A CAT scan showed she had a small brain injury, and she was placed in intensive care for observation. T.M. endured several periods of hospitalization for the treatment of the injuries she suffered in the attack. In addition to the hematoma, she had broken ribs and a broken tooth embedded in her cheek.

Although her attacker s face was partially obscured by a rag or scarf, T.M. never wavered from her identification of him as the neighbor boy or Ms. Kitty s boy. At trial, T.M. positively identified Appellant as her assailant.

Appellant did not testify but called one alibi witness, James Hackett, who testified Appellant was at his house during the early morning hours when T.M. was assaulted.

Factual Sufficiency

In his first issue, Appellant challenges the factual sufficiency of the evidence to support the jury s verdict.

Standard of Review

In the recent case of Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.

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? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. at 484-85.

Discussion

Appellant points to the absence of physical evidence connecting him to the crime. The State presented no fingerprint evidence and no blood samples or DNA analysis. Appellant claims that the only testimony linking him to the crime is the eyewitness testimony of T.M. who saw Appellant in the bedroom illuminated only by a light in the hall. Appellant argues that the State s case rests entirely on the frail memory of an elderly woman.

T.M. testified that she left a light on at night in the living room and hall ever since her husband died. She said that she could see from her bed to the front door, but she first saw Appellant standing at the door between the hall and the bedroom. She claimed she got a good look at him. She had a recent eye operation that made it possible to see well without glasses. She had known Appellant for years, and at one time he had been in the habit of periodically walking across her yard. She became impatient with one of the officers who asked if she was certain about her identification.

Appellant is right handed, consistent with the injuries suffered by T.M. to the left side of her face. Immediately after the assault, Investigator Standley found a small fresh cut on Appellant s right hand.

Appellant lived with his mother, Ms. Kitty, right behind the victim s house. Investigator Standley also found three footprints that indicated someone had recently approached the front porch from the rear of the house.

A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. Bottenfield v. State, 77 S.W.3d 349, 356 (Tex. App. Fort Worth 2002, pet. ref d). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Bonham v. State, 680 S.W.2d 815, 822 (Tex. Crim. App. 1984). The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).

T.M. was never in doubt that Appellant was her assailant. She told five of the witnesses that it was the neighbor boy, Ms. Kitty s son, who assaulted her. She had seen Appellant, Ms. Kitty s son, around the neighborhood for years. Far from having the fragile memory of an elderly woman, several medical witnesses as well as her friends testified that she was extraordinarily mentally alert. Given the close and long-standing personal relationship between Appellant and his alibi witness, Hackett, the jury might understandably discount his story that he fixed an early morning supper for them both while Appellant slept or watched television throughout the hours during which the assault occurred.

Weighing all the evidence in a neutral light, we conclude the evidence supporting the conviction is sufficient to sustain the jury s finding of guilty beyond a reasonable doubt. The evidence is factually sufficient to support the conviction. Appellant s first issue is overruled.

Admission of Evidence

In his second issue, Appellant contends that the trial court erred in allowing Officer Ben Gardner to testify that Appellant s alibi witness, Hackett, had told him in 2001 that Appellant was his boyfriend. Appellant insists this testimony strongly implied that there was a homosexual relationship between him and his alibi witness. Appellant argues that, even if relevant and probative, its prejudicial effect far outweighed its probative value and the trial judge should have excluded the evidence under Texas Rule of Evidence 403.

Standard of Review

A trial court s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). If the trial court s ruling on the admission of evidence is correct under any theory of law, the trial court s decision should not be disturbed even if the trial court gives the wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Applicable Law

Texas Rule of Evidence 403 provides, as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex. R. Evid.403.

Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Rule 403 requires the exclusion of evidence only where there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Id. A proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent s need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

Discussion

During cross examination, Appellant s alibi witness acknowledged that Appellant visited him once a day, frequently stayed overnight, and that he regularly gave Appellant spending money. Appellant, he said, was like a nephew to him. When the prosecutor asked if Appellant was not much closer than a nephew to him, Hackett responded, No ma am, that s not true. The prosecutor then asked if he remembered making a statement to the Crockett Police Department that Mr. McKay was your boyfriend. Hackett denied making the statement. The State, in rebuttal, called Officer Ben Gardner who testified, over Appellant s objection, that he answered a disturbance call at Hackett s home in 2001, where Hackett told him that he and his boyfriend (Appellant) had gotten into an argument and Appellant had done some damage.

The legitimate basis for the introduction of evidence of the prior statement was its impeachment value as a prior inconsistent statement indicating a closer emotional tie between the witness and Appellant than the witness had admitted. The word boyfriend, as understood in this context, connotes a deeper emotional bond than that between an uncle and a nephew, a bond much more likely to influence the witness s testimony and raise greater doubts about his veracity.

The State s case rested in great part on the testimony of the victim. From the State s standpoint, it was important to discredit the alibi witness. The State took little time in developing the challenged evidence and did not dwell on it in argument. We remain unconvinced that the suggestion of homosexuality impressed the jury in some irrational way and unfairly prejudiced Appellant s defense. The probative value of the evidence in question was not substantially outweighed by the danger of unfair prejudice, and the trial court did not abuse its discretion in admitting it. Appellant s second issue is overruled.

Conclusion

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)