Opinion
No. 08-01-00055-CR.
February 27, 2003. DO NOT PUBLISH.
Appeal from the 120th District Court of El Paso County, Texas (TC# 20000D02171).
OPINION
Appellant Kenneth L. Drumgoole appeals from his conviction by the jury for aggravated assault with a deadly weapon and attempted aggravated sexual assault. He was respectively sentenced on each count to 10 years' confinement and a $5,000 fine. Appellant brings five issues on appeal:(1) Evidence is legally insufficient to prove he had either the specific intent to sexually assault the complainant or that he had proceeded beyond mere preparation;
(2) Evidence is factually insufficient to prove his actions were directed toward the completion of sexual assault;
(3) Appellant suffered ineffective assistance of counsel when the State put on undisclosed immunized testimony;
(4) The trial court erred in admitting undisclosed immunized testimony; and
(5) The trial court erred in admitting Appellant's statement.We will affirm. About midnight on April 7, 2000, Krystal Kehrman arrived home to her apartment. After getting out of her car, she saw a man walk toward her and began to feel apprehensive, so she tried to get back in her car. Before she could, something struck her on the head and she became very dazed. When she regained her focus, she was lying half way on the passenger seat, wedged in by the hand brake, and a man was seated on the driver's side trying to start up her car. Mrs. Kehrman began to scream for help, when the man punched her in the face, pulled her hair, and told her, "Shut up, bitch. I have a gun," patting his jacket. Afraid that she would be shot, Mrs. Kehrman stopped screaming. Mrs. Kehrman's assailant continued to try to start her car, but, because the clutch was not pushed in, it would not start. He commanded Mrs. Kehrman, "This f---ing car isn't starting. Start this damn car, bitch," then again punched her and pulled her hair. At this point, he put his hand on her leg and said, "Oh, I am going to f*** you." Mrs. Kehrman believed he would rape her and renewed her cries for help, and the assailant pulled her hair, tried to choke her with his hands, and hit her on the head with what felt like an object, not his fist, just like the first time he hit her and she became dazed. They continued to struggle, but when one of Mrs. Kehrman's neighbors came outside, the man ran away, pursued by the neighbors. Jose Reyes, Jr. and Joseph Kehrman heard a woman screaming outside of their respective apartments. Mr. Reyes saw a woman and a man struggling inside a car from his apartment and ran outside. Mr. Kehrman also came out to investigate and saw a neighbor chasing someone around the corner and his wife screaming and crying. She was bleeding from her head. Both Mr. Kehrman and Mr. Reyes helped to chase the man from the parking lot and assisted in holding him until the police responded. The man was identified as Appellant. Two rocks, which Mrs. Kehrman said had not been there before the attack, were found inside the car; one of them had a bloodstain on it. Officer Gregory Allen testified that rocks were capable of causing death or serious bodily injury and were deadly weapons. After his arrest, Appellant signed a voluntary statement, in which he said he had been wandering inside an apartment parking lot when he saw a girl alone in a car. He got two rocks and hit her on the upper part of the body as she got out of the car. When she began screaming, Appellant ran away but was caught by "some guys." At trial, Appellant admitted assaulting Mrs. Kehrman but denied attempting or having the intent to rape her. Appellant had intended to steal her car and sell off parts of it for drugs, and he had only "pushed" Mrs. Kehrman with the rock. He disputed Mrs. Kehrman's statement that he had touched her leg or said that he would "f*** her." In reviewing the legal sufficiency of the evidence, this Court examines all of the evidence in a light most favorable to the verdict, both admissible and inadmissible, in order to determine whether any rational trier of fact could find the essential elements of the crime as alleged beyond a reasonable doubt. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Lyon v. State, 885 S.W.2d 506, 516 (Tex.App.-El Paso 1994, pet. ref'd). Our duty is not to reexamine the evidence and impose our own judgment as to whether the evidence establishes guilt beyond a reasonable doubt, but only to determine if the findings by the trier of fact are rational. Lyon, 885 S.W.2d at 516-17. Any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). This standard of review applies equally to both direct and circumstantial evidence cases. Garcia v. State, 871 S.W.2d 279, 280 (Tex.App.-El Paso 1994, no pet.). In reviewing factual sufficiency, this Court views all evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). We defer to the fact finder's determinations in reviewing the weight given to the evidence. Id. An appellate court cannot substitute its judgment for that of the fact finder's and should not intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).