Opinion
No. 09-09-00385-CR
Submitted on August 27, 2010.
Opinion Delivered October 6, 2010. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 08-03096.
Before GAULTNEY, KREGER and HORTON. JJ.
MEMORANDUM OPINION
Neal Craig Bellinger a/k/a Neal Craige Bellinger a/k/a Neal Bellinger appeals his conviction for sexual assault. On appeal, Bellinger argues that the evidence is factually insufficient to sustain his conviction because there is insufficient evidence that he knew she was unconscious during the sexual contact. We find Bellinger's sole issue to be without merit and affirm the trial court's judgment.
FACTUAL BACKGROUND
Bellinger pled not guilty to the offense, and trial was to a jury. The jury found Bellinger guilty and assessed his punishment at sixty years in prison. A.L. first met Bellinger when they both lived in a halfway house. Upon discharge from the halfway house, A.L. moved into an apartment while she was awaiting her boyfriend's release from another halfway house. Since Bellinger was a friend of A.L.'s boyfriend, and Bellinger was homeless, A.L., her boyfriend, and the landlord agreed to let Bellinger move in and rent the other room in the apartment. A.L. shared the apartment with Bellinger for four to five days. A.L. testified that on January 6th, she watched a movie with Bellinger and then they each went to bed in their separate bedrooms. Prior to going to sleep that night, she took medication for her bipolar disorder. She testified that two of her medications "knock[ ] [her] out cold," and help her sleep. She recalled that the medicine "knock[ed her] out" as usual. A.L. further testified that Bellinger had been around her long enough to know that she took the medication, but she was uncertain if he knew its side effects. She was also unsure if he knew she had taken her medication that day. A.L. testified that between 2 a.m. and 4 a.m. the next morning, she woke up to find Bellinger "straddled on top of [her]" and having sexual intercourse with her. A.L. explained she asked Bellinger to leave her room and she went to her bathroom and cleaned up and "went right back to sleep because [her] medicine was still kicking in." She testified she did not call anyone then because she was afraid of Bellinger. A.L. testified that she never had sexual relations with Bellinger prior to the assault and had never given him permission to have sexual relations with her. The next day A.L. talked to her landlord, and the landlord called Bellinger's parole officer, as well as A.L.'s parole officer. Charlie Jones, Bellinger's parole officer, testified that he received a phone call from Bellinger on January 7, 2008. Jones described the conversation between Bellinger and himself as follows:[Jones]: And [Bellinger] called me and told me that, I messed up.
I said, What do you mean.
He said, I messed up.
I said, Neal, what are you talking about.
He said, I violated her.
I said, Violated who.
And he said, [A.L.].
I said, Hold on.Jones then testified that when he put Bellinger on hold, he had someone in an adjoining office listen to the phone conversation. Bellinger once again repeated, "I violated her. I messed up. I violated her." Thereafter Jones met Bellinger at his residence and spoke to him about the situation. Jones testified to the following exchange between him and Bellinger:
[Jones:] I said, [Bellinger], what happened. He told me, he said, . . . they had consensual sex earlier that day.
And we kind of went back and forth because I said, What day. I said, Yesterday.
He said, Yes.
I said, But I was here yesterday.
He said it happened after I left. And he told me they had consensual sex that day. He said, She went to sleep. Later on that night, he said, he woke up and he went back in there while she was asleep and had sex with her.
I said, Did she tell you to come in there.
He said, No.
I said, Did she tell you she wanted it.
He said, No. I just thought I could because I had done it earlier that day.Jones recalled that Bellinger admitted he knew A.L. was on medication and that Bellinger stated, "She was out of it, but I thought it was okay." Jones testified that his conversation with Bellinger left him with the understanding that Bellinger knew that A.L. was on medication and "out of it" when he had intercourse with her. Jones also spoke to A.L.'s parole officer who indicated that A.L. told her that she had never had consensual sex with Bellinger. Bellinger testified in his own defense that he only had consensual sexual intercourse with A.L. He described his relationship with A.L. as "friends with sexual pleasures mixed." He testified that he had attempted to have sex with A.L. before they moved into the apartment, but he became impotent because of his nerves. Bellinger testified that on the night in question he and A.L. had watched movies together and then retired to her room and had sexual intercourse. He then fixed eggs, which he testified A.L. ate prior to going back to bed. He then turned off the lights and crawled in bed with her. He explained the events that followed: "And then about five minutes after that, I want — wanted some — some more and . . . she was responsive to everything that I did and . . . we had sex again." He admitted that he knew that A.L. was taking medication, but did not know that it made her groggy or put her in an intoxicated-like state. He testified that after they had intercourse the second time, A.L. told him that he had "raped her." He testified he did not feel like he had raped her. Thereafter he went to his room and went to sleep. Prior to leaving the next morning, he left A.L. a note that said, "We need to talk about last night." Bellinger testified that when he returned to the apartment that afternoon A.L. and the landlord were in the apartment, and the landlord told him he should leave. He also testified that A.L. gave him an ultimatum to either call his parole officer and admit to the rape, or A.L. was going to call the police. Bellinger explained that he agreed to do this even though he did not rape A.L., because the "[p]olice [d]epartment doesn't particularly like parolees because — because of the halfway house." He was afraid the police would "lock him up" without asking any questions; and he thought he could talk to his parole officer and explain the events. While Bellinger admitted that he spoke to his parole officer that afternoon and that Bellinger told him that he "violated" A.L., he denied having a private conversation with his parole officer. He testified that Jones lied about Bellinger's alleged knowledge of the effects of the medication on A.L. and lied about A.L.'s not waking up until the end of the sexual intercourse. A SANE nurse examined A.L. and collected vaginal swabs and blood from A.L. The nurse also collected some additional items from A.L., including the clothing A.L. wore at the time of the assault (pants, shirt, socks and underpants) and two wash clothes. An investigator from the district attorney's office obtained two buccal swabs from Bellinger's mouth for DNA analysis. A forensic scientist with the Texas Department of Public Safety Regional Crime Lab received the buccal swabs from Bellinger and the blood card and vaginal swabs from A.L., as well as cuttings from the wash cloths. The forensic scientist conducted various tests on the materials and concluded Bellinger could not be excluded as a contributor to the sperm cells on the wash cloth and the vaginal swabs. She identified unknown sperm DNA cells in A.L.'s underpants from another male, unknown DNA cells from another female, and excluded Bellinger as a contributor to this sample. The forensic scientist agreed that this result supports the possibility that either someone else wore the underpants or that someone else had sex with A.L. recently. The forensic scientist testified that finding Bellinger's DNA on A.L.'s vaginal swabs was the most probative test for her to consider.
Applicable Law and Analysis
In assessing a claim of factual insufficiency of the evidence, we review all of the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict clearly wrong and manifestly unjust. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are required to give deference to the jury's verdict. Watson v. State, 204 S.W.3d 404, 416-417 (Tex. Crim. App. 2006). A "high level of skepticism about the jury's verdict" is required before an appellate court may reverse on factual insufficiency grounds. Id. at 417. The Court of Criminal Appeals has held as follows:Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record.Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). Bellinger argues that the evidence is factually insufficient to prove, beyond a reasonable doubt, that the sexual conduct between Bellinger and A.L. was not consensual. Under the indictment, Bellinger committed sexual assault if he, intentionally or knowingly, caused the penetration of the sexual organ of A.L. by any means, without her consent. TEX. PEN. CODE ANN. § 22.011 (a)(1)(A) (Vernon Supp. 2010). A sexual assault is without the consent of the other person if "the other person has not consented and the actor knows the other person is unconscious or physically unable to resist[.]" See id. § 22.011(b)(3). Bellinger admitted to having sexual intercourse with A.L. He contends that she was conscious and consented to have intercourse with him. A.L. testified she did not consent and was not conscious during the sexual intercourse. Bellinger's probation officer testified Bellinger told him that he (Bellinger) "violated" A.L. and that she was unconscious when he did so. The evidence is conflicting. Taken as a whole, this evidence when viewed in a neutral light is factually sufficient to establish, beyond a reasonable doubt, that Bellinger sexually assaulted A.L. Bellinger argues that the evidence shows nothing more than "a possibility of guilt." But the jury, as the sole judge of the credibility of the testimony, was entitled to believe A.L.'s testimony, corroborated by the parole officer's testimony. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Moreover, the jury was entitled to disbelieve Bellinger's account of the events. Id. The evidence is not so weak that the jury's finding was clearly wrong and manifestly unjust, nor is this finding contradicted by the great weight and preponderance of the evidence. Accordingly, we overrule this issue. Having overruled Bellinger's factual sufficiency challenge, we affirm the trial court's judgment. AFFIRMED.