Opinion
No. 05-03-01710-CR
Opinion Filed August 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01806-NM. Affirmed.
OPINION
Appellant Daniel Mendez was indicted for, and pleaded not guilty to, attempted sexual assault. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003); Tex. Pen. Code Ann. § 22.011 (Vernon 2003). Punishment was enhanced by one felony DWI conviction. After a trial before the court, appellant was convicted of attempted sexual assault and sentenced to two years' imprisonment. On appeal, appellant contends the evidence is factually insufficient to prove two required elements of the offense: (1) specific intent; and (2) "an act beyond mere preparation that tends but fails to effect commission of the offense intended." Concluding the evidence is factually sufficient, we affirm. Appellant and the complainant, Maria Fleming, had known each other for about ten years. Appellant knew the complainant was a lesbian and had a girlfriend who sometimes lived with her. The complainant had never had any interest in a romantic relationship with appellant. Shortly before this incident, however, at a time appellant says they were both smoking crack, appellant got the impression the complainant was "coming on to him" when she "bared her breast" to him. The complainant suffered from a back injury and recent back surgery and could not work. She lived on disability payments. At various times, appellant would share an apartment with the complainant to help her out with expenses. They seemed to get along well together until this offense occurred. On July 18, 2002, shortly after appellant had moved out of complainant's apartment, he went to a nearby apartment to party where he got drunk and high on drugs. Around 4:00 a.m., he was locked out of that apartment and, unable to locate his car, he walked to the complainant's apartment. Appellant sat outside and waited until the complainant's girlfriend got up to go to work before he knocked on the door. He asked if he could come in and "sleep it off" until he could find a ride home. She let him in and he went to sleep on the sofa. When the complainant was awakened and told appellant was there, she said she would "throw him out when she got up." She then went back to sleep. At some point, appellant moved from the couch to the bed in his "old bedroom" and continued to sleep. Later that morning appellant "thought [the complainant] might want to have sex with him." He based his conclusion on an incident days before of his perception of her "coming on to him." Appellant removed his clothing, opened a closed door, and went into the complainant's bedroom while she slept. Appellant got into bed with the complainant, and called out her name. The complainant, who slept naked, was awakened by appellant's "hovering over her." She was on the bed with only a sheet between them. Both parties agree appellant hovered over her, or was raised up on his hands and knees over her. The complainant was startled when she awoke to see appellant's penis "in her face." Reacting, she raised her hands. According to appellant, he grabbed her hands to protect himself from being scratched. Appellant had the complainant's arms pinned down with all of his weight on top of her. The screaming, cussing, and fighting complainant was "bucking" and "sliding down the bed" to "keep anything from happening." Appellant said he got off of the complainant when she told him to because he was humiliated. Although the complainant remembered neither just how she got appellant off of her nor exactly how appellant left, appellant did leave, after what seemed to the complainant to be a long time. The complainant ran out of her apartment, looking for someone to help her. Describing appellant's conduct as "inhumane, very violent, and very cruel," the complainant testified appellant intended to vaginally penetrate her with his penis without her consent. She testified that appellant did not immediately get off of her when she told him to. She denied smoking crack with appellant or taking off any clothes in front of him. The complainant said she was hysterical the rest of that day, describing herself as being "crazy" and "not in her right mind." She did not remember giving a statement to the police, although she did recognize her handwriting on the statement. When the prosecutor asked if appellant attempted to cause the penetration of her female sexual organ, her vagina, she answered that "[h]e was going there-he had every intention of penetrating me." Later that same day, after calling 911 from a pay telephone, the complainant located and confronted appellant and asked him "why he did that" to her. Appellant apologized. This was in the presence of appellant's mother, who testified at trial the complainant said she did not want to get Danny "in trouble." Appellant's mother took the complainant's statement to mean the complainant wanted money, although the complainant never asked her for money. She testified the complainant had a Medicaid form and kept repeating the phrase "I don't know what to do." Appellant's mother concluded from the complainant's comments that some of her financial benefits had been denied. She also testified that the complainant, in referring to her girlfriend, said she did not sleep with her, did not like her, and did not know why she had her there. She also testified the complainant was not afraid of appellant and that her real complaint was that appellant had invaded her privacy. In his brief, appellant sums up the complainant as "confused and conflicted at best, and manipulative and mendacious at worst." Appellant first denied the incident, but eventually gave a statement to the police. He also testified at trial. He admitted he went into the complainant's bedroom while she was asleep "with the intention of having consensual sexual relations with her." He admitted that he got drunk and took drugs the night before and that he went into the complainant's apartment. He also conceded that he disrobed and got into bed with the complainant, who was also naked, and made it known to her he wanted to have sex with her. There is conflicting evidence on whether appellant immediately left when the complainant told him to get off of her. Appellant complains only of factual insufficiency of the evidence. The factual sufficiency standard of review is well known to the parties. It was first established in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). Clewis requires an appellate court to review all of the evidence neutrally without the prism of "the light most favorable to the prosecution." Id. at 129. Following Clewis, the court of criminal appeals has attempted to clarify or modify the Clewis standard in a number of opinions, most recently in Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004). Consequently, we have analyzed the evidence in this case applying the Zuniga standard. As we read Zuniga, an appellate court must analyze all of the evidence in a neutral light in determining whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See id. at *7. A person commits 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 a sexual assault. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003); Tex. Pen. Code Ann. § 22.011(a)(1)(A) (Vernon 2003).
In this case, the indictment charged that appellant . . . unlawfully then and there, with specific intent to commit the offense of Sexual Assault, [did] an act, to-wit: knowingly and intentionally attempt to cause the penetration of the female sexual organ of MARIA FLEMING . . . without the consent of said complainant, by means of an object, to-wit: the sexual organ of said defendant by the defendant laying on top of complainant while the defendant's sexual organ was exposed and holding complainant against a bed and preventing complainant from moving with the defendant's hand and torso . . .Appellant argues the evidence is factually insufficient to prove two required elements: his specific intent and "an act beyond mere preparation that tends but fails to effect the commission of the offense intended." Appellant contends the evidence is sufficient to show only that he intended to have consensual sexual relations with the complainant.
The record does not reflect a plea by appellant to the enhancement paragraph; however, the trial court found the allegations in the enhancement paragraph to be true, contrary to appellant's assertion in his brief, and the evidence supports the trial court's finding.
Because appellant raises only factual sufficiency, the evidence is presumptively legally sufficient. See Patterson v. State, 96 S.W.3d 427, 432 n.8 (Tex. App.-Austin 2002, pet. ref'd) (holding that evidence is legally sufficient when only factual sufficiency is raised).