Opinion
No. 05-04-00566-CR
Opinion issued June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st District Court Collin County, Texas, Trial Court Cause No. 401-81749-01. Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Kenneth Williams appeals his sexual assault conviction. The trial court found appellant guilty and sentenced him to twelve years' confinement. In three issues, appellant argues the trial court erred in failing to hold a public trial, the evidence is legally insufficient to support his conviction, and the trial court abused its discretion in admitting evidence of an extraneous sexual assault conviction. We affirm the trial court's judgment. On November 7, 2001, appellant came to the Hooters restaurant where the complainant J.F. worked. J.F. had waited on appellant in the restaurant before, and she spoke to him about her difficulties paying her bills, in particular a cell phone bill for $300. J.F. met appellant at a convenience store and followed him to his house. J.F. went inside the house with appellant and sat with him on the couch. Appellant got up and went "off somewhere into a room," and J.F. heard "clinking noises." When he returned, appellant sat on the couch next to J.F, who told him she wanted to go home. Appellant said he didn't want J.F. to go home, and his personality became "Just kind of stern, like he wasn't gonna [sic] let me go anywhere." Appellant's first remark was that "he wanted to eat [J.F.'s] pussy." J.F. "freaked out" and got scared. Appellant stopped J.F. from getting up from the couch and prevented her from leaving the living room. Appellant told J.F. she "wasn't leaving." After failing to get away, J.F. "kind of crouched down in the corner and was crying and shaking." Appellant became angry and threatened to get a gun if J.F. did not cooperate and show her body to him. J.F. was "very scared" and began taking her clothes off. When J.F. hesitated, appellant became "stern and angry" and told her to keep going or he was going to hurt her. Once J.F. finished taking her clothes off, appellant took the clothes and hid them. J.F. asked appellant to get a condom and appellant complied. Appellant performed oral sex on J.F. and then penetrated her female sexual organ with his penis. When he had finished, appellant returned J.F.'s clothes. J.F. put her clothes on and left, driving home and showering before going to the home of Fernando, a man she had previously dated. Fernando convinced J.F. to call police, and they met with police at the hospital. J.F. subsequently told police the location of appellant's house and identified appellant from a photographic lineup. Appellant was convicted of sexual assault, and this appeal followed. In his first point of error, appellant argues his right to a public trial was violated when the court held trial in a jury room. The proceedings and trials in all courts shall be public. Tex. Code Crim. Proc. Ann. art. 1.24 (Vernon 2005). Here, the record shows appellant's trial was conducted in a jury room because the courtroom was being used for a jury trial, and the trial judge was "running a double docket." Appellant did not object to the use of the jury room, and there is no evidence the jury room was not "public." Further, the record indicates at least one member of the public was present in the jury room during trial. Under these circumstances, we conclude appellant's right to a public trial was not violated when the trial court conducted its proceedings in a jury room. We overrule appellant's first point of error. In his second point of error, appellant argues the evidence is legally insufficient to support his sexual assault conviction. In particular, appellant argues there is no evidence of threatened or actual physical force or violence. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent. Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2004-05). A complainant's testimony, standing alone, is sufficient evidence of penetration. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). Viewing the evidence in the light most favorable to the prosecution, the record contains J.F.'s testimony that appellant would not let her leave and threatened to get a gun and told her he was going to hurt her if she did not finish taking her clothes off. J.F. was "very scared." Appellant then performed oral sex on J.F. and penetrated her female sexual organ with his penis. We conclude this evidence is legally sufficient to show appellant committed sexual assault against J.F. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2004-05); Garcia, 563 S.W.2d at928. We overrule appellant's second point of error. In his third point of error, appellant complains the trial court abused its discretion in admitting evidence during the punishment phase of trial of an extraneous sexual assault complaint against appellant. When the trial court, as here, assesses punishment, it may determine that an extraneous offense is relevant to punishment and admit such evidence, but the court may then only consider the extraneous offense in assessing punishment if it finds that the offense was proven beyond a reasonable doubt. Williams v. State, 958 S.W.2d 844, 845 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (op. on reh'g). Here, the State introduced evidence at punishment that Frisco police had investigated appellant in June of 2001 based on a claim that appellant had raped a woman. The evidence also showed, however, that the charges against appellant were dropped. The State, in its closing argument, characterized appellant as a serial rapist and requested the trial court to assess punishment at twenty years' confinement. Instead, the trial court specifically stated that "if [the State] had proven that extraneous offense beyond a reasonable doubt, I would agree with you" and sentenced appellant to twelve years' confinement. Thus, the record shows the trial court did not find the extraneous offense proven beyond a reasonable doubt and did not consider it in assessing punishment. Under these circumstances, we find no error. See Williams, 958 S.W.2d at 845. We overrule appellant's third point of error. We affirm the trial court's judgment.