No. 05-09-00040-CR
Opinion issued December 2, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 422nd Judicial District Court Kaufman County, Texas, Trial Court Cause No. 26455-422.
Before Chief Justice WRIGHT and Justices FITZGERALD and MURPHY.
Opinion By Chief Justice WRIGHT.
Alton Wayne Lewis, Jr. waived a jury and pleaded not guilty to burglary of a habitation with intent to commit sexual assault. After receiving testimony, the trial court found appellant guilty and, pursuant to a plea agreement, assessed punishment at six years' imprisonment. In a single point of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant entered the habitation of Thelma Quinn, without her effective consent, and committed or attempted to commit the felony offense of sexual assault. See Tex. Penal Code Ann. § 30.02(a)(1), (d) (Vernon 2003). Evidence Presented
Thelma Quinn, the complainant, testified that she, her four children, and her boyfriend Scott Smith moved into a home across the street from appellant and his girlfriend in January 2007. They sometimes visited with appellant and his girlfriend at their house or went to appellant's house. Quinn testified that at 2:00 a.m. on September 28, 2007, appellant came into her house without permission and attempted to sexually assault her. Quinn and her children were alone in the house because Smith had stayed overnight in Arlington with his brother that night. At the time appellant entered her house, Quinn was asleep in her upstairs bedroom. She put her children to sleep in the living room because the window air conditioning unit in their room was broken. Quinn awoke and saw appellant standing in the doorway to her bedroom. Appellant was wearing boxer shorts and had no shirt on. Appellant got in her bed under the covers and said, "[Y]ou know you want me. You know I'll treat you better than Scott." Appellant also said, "[Y]ou know I can take care of you and these kids. You're a better woman than what Scott thinks you are." Appellant began kissing Quinn's neck and ear. Quinn tried to move away from appellant under the covers. Appellant grabbed Quinn's left thigh on the outside of her pajama pants and pulled her toward him. Quinn testified appellant's hand held onto the inside of her thigh "about two inches away from my vagina area on the right side." Quinn repeatedly asked appellant what he was doing in her house. Quinn testified she was scared because she did not know if her children were okay, and she believed appellant was going to sexually assault her. Quinn eventually moved to the edge of the bed away from appellant. She demanded that appellant leave her house, telling him he was not supposed to be there. After a few minutes, appellant got up, put his pants on, and left the bedroom. Quinn ran downstairs. The children were still asleep. Quinn ran next door to a neighbor and called the police. Quinn also testified that she had a prescription for Ambien to help her sleep, but she did not take the drug on the night of the burglary because she never took the pills when she was home alone with the children. Kaufman police officer John DeBorde testified he responded to Quinn's 911 call involving a burglary and an assault. When DeBorde arrived at Quinn's house, he saw that she was "scared, all bunched up, and frightened." Quinn said appellant had attempted to sexually assault her. She gave DeBorde appellant's name and a description of his vehicle. DeBorde testified he wrote out a statement for Quinn because she was too nervous and scared to write it. Sergeant Leslie Edwards testified he responded to the burglary call as a backup officer. While en route to the scene, he saw appellant pass by his patrol car. Because Edwards had conducted prior traffic stops involving appellant, he knew appellant's name, the vehicle appellant drove, and that appellant did not have a driver's license. Edwards turned his patrol car around, intending to make a traffic stop, but he found appellant's vehicle stopped at a red light. Appellant was not in the vehicle. Edwards saw appellant walking around in the fenced back yard of a nearby house. Appellant said he was looking for someone. Edwards walked appellant back towards the patrol car and talked with him. A DVD recording of Edwards's conversation with appellant was played for the trial judge. On the recording, appellant said: (1) he knew Quinn's boyfriend had been gone for "a few days," (2) he went to Quinn's house to check on her and her children, (3) he put covers on the children, who were asleep on the couch, then went upstairs to check on Quinn, (4) he identified himself to Quinn, but she kept calling him "Stanley," (5) he knew Quinn took Ambien sometimes and he thought she was delusional when she called him Stanley, (6) he "tucked" Quinn into bed, then he left her house. Edwards testified that appellant said he went to Quinn's house at 2:00 a.m. because he wanted to "check on her and tuck her in." Appellant testified he and his fiancé lived across the street from Quinn, and they visited each others' homes often. On September 28, 2007, appellant and his friend, Chris East, went to Quinn's house at about 2:00 a.m. to borrow some toilet paper. East opened the front door to Quinn's house first, then appellant also went inside. East stayed downstairs with the children while appellant went upstairs to awaken Quinn to let her know they were in her house. Quinn was in bed asleep when appellant went to her bedroom. Appellant testified he was wearing a white tank top and denim shorts. He did not take off his shirt and pants. Appellant said he "probably" touched Quinn's thigh when he woke her, but only from outside the covers. Appellant did not get into bed with Quinn and did not get under the covers in Quinn's bed. Appellant denied kissing Quinn or touching the inside of Quinn's thigh. Appellant admitted he told Quinn that he could take care of her and her children better than Smith, but denied that he meant anything sexual by that comment. Appellant testified Quinn kept calling him Stanley. Appellant tried to tell Quinn the reason he was in her house, but she was "not coming to or whatever. So I got up and left." Appellant testified that after he left Quinn's bedroom, he got the toilet paper that he had come there to get and went back to his own house. During cross-examination, appellant testified the reason he went to Quinn's house was to check on her and her children. Discussion
Appellant contends the evidence is legally and factually insufficient to show he entered Quinn's habitation and committed or attempted to commit a sexual assault. Appellant argues the evidence shows he and Quinn were neighbors and socialized together, he neither made any threats nor exhibited any force towards Quinn, he denied touching Quinn's inner thigh area, and he left Quinn's house when asked to do so. The State responds that the evidence is legally and factually sufficient to support appellant's conviction. A person commits sexual assault if he intentionally or knowingly (1) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; (2) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (3) causes the sexual organ of another person, without that person's consent, to contact or to penetrate the mouth, anus, or sexual organ of another person, including the actor. See Tex. Penal Code Ann. § 22.011(a)(1) (Vernon Supp. 2009). A person commits the offense of attempted sexual assault if, with specific intent to commit sexual assault, he does an act amounting to more than mere preparation that tends but fails to effect the commission of sexual assault. See Tex. Penal Code Ann. § 15.01(a) (Vernon 2003). The "specific intent" element means that the accused must intend to bring about the desired result. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1982). A person's intent to commit an offense generally must be established by circumstantial evidence and may be inferred from the person's acts, words, and conduct. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Lindsey v. State, 764 S.W.2d 376, 378 (Tex. App.-Texarkana 1989, no pet.) (involving intent to commit sexual assault when charged offense was attempted sexual assault). The criminal attempt statute does not require that every act short of actual commission be accomplished in order for a defendant to be convicted of an attempted offense. See Lindsey, 764 S.W.2d at 378 (concluding that failure to complete act of sexual assault does not negate defendant's intent). Here, Quinn testified appellant entered her house without permission and attempted to sexually assault her. She was asleep when, at 2:00 a.m., appellant entered her bedroom, stood in her doorway wearing only boxer shorts, then got into her bed under the covers. Quinn said appellant grabbed her thigh on the inside near her vagina and pulled her toward him. Appellant began kissing her neck and ear and saying he could take care of her better than Smith, her live-in boyfriend. Appellant denied that his actions contained any sexual intent. Appellant testified he entered Quinn's house at 2:00 a.m. because he wanted to check on her and her children and he wanted to borrow some toilet paper. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A reasonable fact-finder could infer that appellant intended to sexually assault Quinn when he entered her house without permission at 2:00 a.m. and went directly to her bedroom, removed most of his clothing, and made sexual advances toward her. Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support's appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We overrule appellant's points of error. We affirm the trial court's judgment.