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Bonner v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 27, 2004
No. 05-03-01700-CR (Tex. App. Aug. 27, 2004)

Opinion

No. 05-03-01700-CR

Opinion issued August 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-52934-R. Affirmed.

Before Chief Justice THOMAS and Justices BRIDGES and MALONEY.

The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


The trial court convicted Andrew Bonner of sexual assault, found the enhancement paragraph true, and assessed a sixty-year sentence. In one issue, appellant complains that factually insufficient evidence exists to support his conviction. We affirm the trial court's judgment.

BACKGROUND

The complaining witness was having a beer with her friend, James, when he introduced her to appellant. Appellant offered to take the complaining witness to eat. Instead, he took her to his van and had sex with her several times. Eventually, the complaining witness left the van, returned to the convenience store, and called the police to report a sexual assault.

WAS THE EVIDENCE FACTUALLY SUFFICIENT?

In appellant's sole issue, he claims that his testimony shows he had consensual sex with the complainant in exchange for drugs. She maintained appellant forced her to have sex only after he refused to pay her "pimp." The State responds that contrary to appellant's testimony, the complainant's testimony shows that appellant forced her to participate in sexual acts. The factfinder could have reasonably rejected appellant's version of the encounter and believed the complainant. And the evidence contrary to the verdict was not strong enough to defeat the beyond-a-reasonable-doubt standard.

1. The Evidence a. Dobie Pepsis

Pepsis, a Dallas Police physical evidence officer assigned to the sexual assault unit, responded to a telephone call regarding a sexual assault. He photographed the inside and the outside of the van in question as well as the area surrounding the van. Although the fence gate was chained and locked, a large hole in the fence allowed entry to the yard. From the scene, Pepis went to Parkland Hospital to photograph the complainant. He found the complainant in the "Gynecology\OB section". His photographs show scratches on complainant's arm, bruises and swelling on her left eye, and two cuts above her left chest area.

b. The Complainant

The complainant testified that she was at the neighborhood convenience store drinking a beer with James about 4:00 or 5:00 p.m. James introduced her to the appellant and they began talking. When she became hungry, appellant offered to take her to his house and fix her something to eat. Appellant took her the "back way" through a hole in the fence. They passed a van in the back yard, and appellant said he needed to get something out of the van. She did not want to get in the van, so she told appellant she was leaving. That made him angry and he grabbed her hair and pulled her into the van. Once inside the van, appellant began to smoke "crack" and continued to drink. When the complainant refused to smoke "crack," appellant "made her" take a puff of the crack. Next, he asked her to take off her clothes so they could have sex. She refused. He ripped her blouse, so she took her clothes off. She became afraid because when she refused him, he became angry. The more appellant drank and smoked crack, the angrier he became. Appellant had intercourse with the complainant. When he finished, she tried to leave. However, appellant took her clothes so she could not leave. By then it had turned dark, and she could not "remember where that hole [in the fence] was at." Appellant hit her head with his fist and forced her to have oral sex. After he finished, she again tried to leave, and appellant grabbed her hair and hit her on her left eye and lip. He began to choke her. Then he had intercourse with her again. After appellant finished, he let her leave. By then, it was early morning and getting light outside. As the complainant was returning to the convenience store, she saw James and ran toward him. He looked at her and asked her what happened and asked if Andrew had done that to her. On cross, the complainant explained that appellant had hit her seven or eight times with his right fist. She admitted that she had smoked crack before the offense, but appellant had never bought any crack for her. She also admitted that on the morning after the rape, she did not tell anyone appellant pulled her by the hair into the van. Rather, she told them "he snatched me in the van."

c. Derrick Walker

Walker, a Dallas Police Officer, received a radio call to go to the scene. When he arrived, the Dallas Fire Department was treating the complainant's injuries. Her eye was swollen, and she was bruised and crying. James told Walker where they would find the one who raped the complainant. Walker and another officer followed his directions and found appellant, but he was sitting on the porch in a different backyard. On cross, Walker testified that he and the other officer approached appellant with drawn guns. Walker admitted appellant was cooperative and did not try to get away. Walker acknowledged that the report he made "close in time" to the offense showed that the complainant had "agreed to get in" the van.

d. Miguel Sarmiento

Sarmiento, a Dallas Police Detective, testified that he "responded to Parkland in the OB/gyn" where doctors were examining complainant. She appeared to be bruised, bleeding, and traumatized. She did not appear to be under the influence of either alcohol or drugs. Sarmiento returned to the interview room where the officers had taken appellant after arresting him. Appellant did not appear to be under the influence of anything and was cooperating. He gave a statement recounting the events of the night before.

e. The Appellant

Appellant testified that he had been with the complainant on other occasions before the night she reported the rape. On the night in question, she agreed to the sex just as she had twice before. The first time they had sex, he had met her at the bus stop. Appellant asked her, "[w]hat it take, you know, talk to her." The complainant told him "she charged $10." Appellant then told her that he had ten dollars and she said, "Well, you get a room." He told the complainant that he didn't have enough money to get a room. And she countered with, "[W]ill you buy me a rock?" Appellant bought the rock. Then James took appellant and the complainant to a vacant house. After James stepped out, appellant and the complainant had sex. The three of them then went back to the convenience store. The next time they had sex, appellant bought a larger rock. He gave part of the rock to James. Appellant and the complainant smoked the rest together. The third time appellant approached the complainant about having sex was the night of the alleged rape. As appellant began to talk with the complainant, James said, "[Y]ou know you're with my girl." Appellant then said to the complainant, "Say, you told me you didn't have a man." The complainant told appellant to pay James and not worry about it. After appellant gave James a piece of rock, appellant and the complainant went to the van. In the van, appellant gave the complainant ten dollars, and they smoked crack and had sex. Later that night, James came to the van. He said appellant owed him more money for "staying with his girl so long." Appellant would not pay him any money. James and the complainant left together. They were arguing and making a lot of racket. The next morning, James, the complainant, and two other men approached appellant and demanded "payment." When appellant refused, James told the complainant to call the police. Appellant left for work and told James, "You know where I work . . . that's where I'll be when the police come." When the police arrived, they arrested appellant and put him in a squad car. James was seated in the back seat. Appellant maintained that he never hit the complainant. He testified he had injured his right hand in a car accident and "could hardly move that hand at all." He had to be very careful with his right hand and could only use his left hand to work.

2. Standard of Review

In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003).

3. Applicable Law

A person commits sexual assault if he penetrates the female sexual organ of another by any means, without consent. Tex. Pen. Code Ann. § 22 .011(a)(1) (Vernon 2003). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We defer to a factfinder's determination concerning the weight and credibility of testimonial evidence unless the record clearly reveals a manifest injustice. See Johnson, 23 S.W.3d at 9.

4. Application of Law to Facts

The evidence is uncontradicted that appellant and the complainant engaged in sexual intercourse. The factfinder, and this Court, must decide if the evidence supports the finding that the complainant did not consent to having sexual intercourse with appellant. The complainant and appellant related conflicting versions on the events that occurred that night as well as their previous relationship with each other. The factfinder saw the witnesses and heard their testimony and decided which story to believe. We defer to its decision. Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable doubt standard. Nor can we conclude that the contrary proof outweighed the proof of guilt. Consequently, we conclude the evidence was factually sufficient to support the conviction. We resolve appellant's sole issue against him. We affirm the trial court's judgment.


Summaries of

Bonner v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 27, 2004
No. 05-03-01700-CR (Tex. App. Aug. 27, 2004)
Case details for

Bonner v. State

Case Details

Full title:ANDREW BONNER, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 27, 2004

Citations

No. 05-03-01700-CR (Tex. App. Aug. 27, 2004)