Ricki Alan Everson v. State ( 2008 )

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Opinion issued June 26, 2008

  In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00510-CR

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RICKI ALAN EVERSON A/K/A RICHARD ALAN EVERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1059459

MEMORANDUM OPINION

          A jury convicted appellant, Ricki Alan Everson a/k/a Richard Alan Everson, of sexual assault by contact and, after appellant pleaded true to two enhancement paragraphs alleging felony convictions of delivery of a controlled substance and of possession of a firearm by a felon, assessed punishment at 25 years in prison. See Tex. Penal Code Ann. § 22.011(a)(1)(C) (Vernon Supp. 2007). We determine whether the evidence was legally and factually sufficient to show that appellant intentionally or knowingly caused the sexual organ of the complainant, S.M., to contact the sexual organ of appellant without her consent and that appellant knew that the complainant was unaware that the sexual assault was occurring. See id. § 22.011(a)(1)(C), (b)(5) (Vernon Supp. 2007). We affirm.

Facts

          In the fall of 2003, the complainant met and began dating appellant just after she had completed a drug-rehabilitation program. During her relationship with appellant, the complainant became addicted to drugs again and was convicted of theft. Prior to October 17, 2003, appellant and the complainant had engaged in consensual sexual intercourse.

          On October 17, 2003, appellant had sexual intercourse with the complainant in her bedroom at her father’s house while she was unconscious; appellant recorded the event with a videotape camera. The videotape shows appellant’s having sex with the complainant, who appears to be unconscious because she does not move at all unless appellant moves her. The complainant testified that she was “completely unaware” of what was going on and that she was probably on drugs at the time that the sexual intercourse was carried out by appellant. During her direct examination, the complainant affirmatively stated on two separate occasions that she did not consent to the sexual intercourse portrayed on the videotape.

          The complainant did not know about the videotape during the several years that she dated appellant. She discovered the tape when Troy Narvase, appellant’s friend, brought it to her attention in 2005, a month after the complainant had returned from a two-month trip to California. This was not long after she and appellant had broken up. Narvase testified that, when the complainant viewed the tape, she appeared “very hysterical” and unhappy and stated that she “felt sick” watching the videotape, which showed her “passed out” while appellant had sex with her. After discovering the tape, the complainant waited four months before turning it over to the police because she was “embarrassed.”

Sufficiency of the Evidence

          In what he designates as his two “grounds” of error, appellant contends that the evidence was legally and factually insufficient to establish the essential element that the complainant had not consented.

A.      Standards of Review

          1.       Legal Sufficiency

          In reviewing the legal sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the verdict and examine whether a rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The jury, as the trier of fact, is the sole judge of the facts, the credibility of the witnesses, and the weight to be given to each witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Thus, the jury can accept one version of the facts while rejecting another or reject any part of a witness’s testimony. Id. The jury may also make reasonable inferences from the facts given and weigh the testimony and evidence as it sees fit. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). We may not re-weigh the evidence or substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

          2.       Factual Sufficiency

          In a factual-sufficiency review, we view all the evidence in a neutral light and ask (1) whether the evidence, although legally sufficient, is nevertheless “so weak” that the trier-of-fact’s verdict is “clearly wrong and manifestly unjust” or (2) whether there is conflicting evidence “against the great weight and preponderance of the evidence” such that it outweighs the evidence supporting the conviction and makes a finding of guilt by the jury manifestly unjust, so that the verdict cannot stand. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). When conducting an analysis of a factual-sufficiency challenge, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. at 417. In an analysis of the evidence in response to a prong-two factual-sufficiency challenge alleging that the evidence that supports the jury’s verdict is against the “great weight and preponderance of the evidence,” we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict; instead, we must have some objective basis in the record on which to conclude that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

          In conducting a factual-sufficiency review, the Court must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Finally, we must exercise appropriate deference to the jury’s conclusion, in order to avoid substituting our judgment for that of the jury, keeping in mind that the jury is the exclusive judge of the witnesses’ testimony and credibility and may believe all, some, or none of the testimony. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.—Dallas 2003, no pet.). The reconciliation of any conflicts in the evidence must remain within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

B.      The Law of Sexual Assault

          Texas Penal Code section 22.011(a)(1)(C) provides that a person is guilty of sexual assault if the person “intentionally or knowingly causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.” Tex. Penal Code Ann. § 22.011(a)(1)(C) (Vernon Supp. 2007). Consent is defined as “assent in fact, whether express or apparent,” meaning that consent can be either express in words or implied in actions. Id. § 1.07(a)(11) (Vernon Supp. 2007). As defined by the charge here, the sexual assault is without the consent of the other person “if the other person has not consented and the actor knows that the other person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(5) (Vernon Supp. 2007). Evidence that the victim of a sexual assault was unconscious due to voluntary intoxication is sufficient to prove lack of consent. See Elliott v. State, 858 S.W.2d 478, 485 (Tex. Crim. App. 1993).

C.      Legal Sufficiency of the Evidence Showing Lack of Consent

          In what he designates as his first ground of error, appellant challenges the legal sufficiency of the evidence to prove lack of consent. In support of his legal-sufficiency challenge, appellant first argues that the testimony on which he relies makes it “impossible for any rational trier of fact to conclude that the sexual contact was without consent.” However, appellant then relies almost entirely upon (1) evidence that is not viewed in the light that is most favorable to the jury’s implicit determination that the complainant did not consent and (2) evidence that questions the credibility of the complainant’s testimony. Neither the evidence attacking the complainant’s credibility, which would require us to re-weigh the complainant’s testimony and to substitute our judgment for that of the fact-finder, nor the evidence that is not in the light most favorable to the verdict is appropriate for consideration in reviewing a legal-sufficiency challenge. See King, 29 S.W. 3d at 562.Appellant’s second argument under his first ground attacks the standard applicable to legal-sufficiency challenges. Appellant relies on Butler v. State to argue that, in his words, “historically, the United States Supreme Court has held that criminal convictions could not be sustained under a sufficiency of the evidence analysis if there was no evidence.” 769 S.W.2d 234, 239 (Tex. Crim. App. 1989) (concluding that “no evidence” standard for legal-sufficiency review was “expressly forbidden” by United States Supreme Court by Jackson v. Virginia), overruled on other grounds, Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Appellant argues that “beyond a reasonable doubt is a bulwark of our criminal jurisprudence,” and, as the “minimum prerequisite for sustaining a conviction,” the standard serves the purpose of protecting the due process rights of the accused. Appellant elaborates that, although the standard of “any” evidence that could support a rational jury finding in favor of the verdict may suffice for civil cases or for affirmative defenses, both of which require proof only by a preponderance of the evidence, the State is legally required to prove every element of the offense charged beyond a reasonable doubt. This “no evidence” rule for legal sufficiency, appellant argues, is itself insufficient due to its limited protection of appellant’s due process rights.

          We understand appellant’s contention to be that a small amount of evidence cannot be sufficient to support a rational juror’s conviction beyond a “reasonable doubt” for the purpose of judging legal sufficiency. However, the standard that we have set out above for evaluating legal-sufficiency challenges in criminal cases remains good law and was established by the United States Supreme Court in Jackson v. Virginia, by which we are bound. See 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2787–88 (1979). Under this standard, the testimony of a single witness—no matter how credible—that proves the material elements of the criminal act with which an appellant is charged is enough to defeat a legal-sufficiency challenge.

          In Glover v. State, the court rejected the appellant’s objection to the lack of direct evidence that he had penetrated the female sexual organ of the victim, concluding instead that one witness’s providing circumstantial evidence of each element of the crime charged was enough to meet the State’s burden with respect to legal sufficiency. See 102 S.W.3d 754, 759 (Tex. App.—Texarkana 2002, pet. ref’d). In this case, the complainant’s direct evidence that she did not consent is sufficient by itself to prove lack of consent. Nevertheless, the complainant’s testimony is corroborated both by the videotape of the offense and by Narvase’s testimony of the complainant’s “very hysterical” reaction to viewing the tape.

          Accordingly, we overrule appellant’s first ground of error.

D.      Factual Sufficiency of the Evidence Showing Lack of Consent

          In what he designates as his second ground of error, appellant challenges the factual sufficiency of the evidence. Appellant’s challenges consist of various attacks on the credibility of the complainant’s testimony. He relies on the complainant’s testimony concerning her drug problem, her theft conviction, and her “always [having] loved [appellant],” as well as on testimony from mutual friends of appellant and the complainant that undermines the complainant’s credibility. The evidence from the complainant’s testimony upon which appellant most relies includes (1) the complainant’s inability to remember consenting prior to becoming unconscious, (2) the complainant’s admission that it is possible that a conversation concerning consent took place prior to the start of the recording, (3) the complainant’s statement that she would have consented to the intercourse had she been awake, and (4) the complainant’s having had a conversation with appellant five or more months after the October 17 sexual intercourse about whether she would consent to having sex with appellant while unconscious.

          Furthermore, appellant emphasizes that the “complainant herself does not know if she consented” and, therefore, that her testimony, although perhaps legally sufficient, is so inherently weak as to make the verdict “clearly wrong and manifestly unjust” and, therefore, factually insufficient. Finally, appellant contends that the complainant’s testimony is inherently weak because the complainant’s four-month delay in turning the videotape over to the police after having discovered it suggests circumstantially an implied consent to the taped sexual intercourse. This set of arguments in the form of a prong-one factual-sufficiency challenge nevertheless relies on other evidence to weaken the complainant’s testimony, rather than on her testimony’s inherent weakness. Thus, we deem this set of arguments to be part of appellant’s prong-two factual-sufficiency challenge.

          Appellant also relies on the testimony of four mutual friends of appellant and the complainant. First, appellant relies on the testimony of Christine Compton and Kelly Stowe that (1) the complainant spoke about a videotape that appellant had taken of appellant and her having sex as though it were comical and that (2) the complainant told Compton that she would consent to appellant’s having sex with her when she passed out from taking drugs. However, Stowe testified that neither appellant nor the complainant specified the date of the videotape that they talked about and that the complainant appeared “very high” when she made these statements to Compton and Stowe.

          Second, appellant relies on Kimberly Kennedy’s testimony that she witnessed the complainant “talking, gloating, and being pretty happy about the video” in public “very out in the open” twice and privately at the apartment that the complainant shared with appellant, as though it were “common knowledge.” However, Kennedy never saw the videotape. Finally, appellant relies on Kathy Kennedy, who testified that she had watched the videotape with the complainant, who seemed “unfazed, as if she knew about it the whole time, thought it was funny.” However, Kennedy also testified that the complainant was “messed up on pills” at the time, which a jury could have believed explained her failure to react if they also believed that Kennedy’s viewing of the videotape occurred.

          In support of his prong-two factual-sufficiency attack, to support and to corroborate the contradictory testimony given by appellant’s witnesses, appellant relies upon the complainant’s testimony that she “would have consented” had she been awake at the time of the sexual intercourse as circumstantial evidence of the complainant’s consent to the sexual act. However, the fact that the complainant “would have consented” had she been awake at the time that appellant had sexual intercourse with her on October 17, 2003 is not dispositive of whether the complainant “in fact” consented, impliedly or expressly, when appellant had sex with her while she was unconscious.

          Evidence of the complainant’s inability to remember whether she consented is not dispositive of her consent, nor does it make the complainant’s testimony of her nonconsent so weak that the verdict is “clearly wrong and manifestly unjust.” In Bellaire v. State, the court concluded that evidence in support of the verdict was factually sufficient when the complainant was sexually assaulted while unconscious as a result of voluntary intoxication and thus could not remember consenting to the sexual act. 110 S.W.3d 664, 670 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).          Evidence of the complainant’s testimony’s being contradictory is also not dispositive of the issue. A decision is not manifestly unjust merely because the fact-finder resolved conflicting views of the evidence of the complainant’s nonconsent in the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet. ref’d). The jury was presented with the inconsistencies in the complainant’s testimony as to whether she consented, and it resolved the conflict against appellant.

          We observe that the State’s evidence showed that appellant had videotaped himself having sex with the complainant while she was completely unaware of the sexual act or its recording because she was passed out from using drugs. The contents of the videotape show that the complainant was unconscious because, in the videotape, the complainant does not move unless appellant moves her. The complainant’s unconsciousness corroborated the complainant’s testimony that she did not consent because her unconsciousness rendered impossible an expression of implied or express consent. See Elliott, 858 S.W.2d at 485. Additionally, the complainant testified that, prior to October 17, 2003, she had never told appellant that it was alright for him to have sex with her while she was unconscious. Finally, the complainant testified that she would not have put herself through having to come to court and having the jury sit and watch the tape if she had consented to this activity with appellant.

          In Casey v. State, the court held that the evidence was factually sufficient to show that the appellant had sexual intercourse with the complainant without her consent when the complainant passed out due to voluntary intoxication from consuming alcohol and “drifted in and out of consciousness” while appellant had sex with her and took pictures of her naked body. 160 S.W.3d 218, 222–224 (Tex. App.—Austin 2005), rev’d on other grounds, 215 S.W.3d 870 (Tex. Crim. App. 2007). The complainant in Casey regained full consciousness only at 4:30 a.m., finding herself naked on the floor of the appellant’s bedroom, at which point the appellant told her that she had thrown up on herself and that he had washed her clothes. Id. at 222. Similar to the complainant in Casey, the complainant here became voluntarily intoxicated by taking pills and passed out, remained unconscious throughout the sexual intercourse, and was recorded on videotape appearing unconscious and unaware during the intercourse.

          In Guajardo v. State, the court overruled a factual-sufficiency challenge to a conviction of sexual assault in which the appellant attacked the credibility of the complainant’s testimony, holding that evidence that the complainant was “acutely intoxicated,” “unconscious for a period of time,” and “did not resist the alleged attack” rendered nonconsent a matter for determination by the jury. 176 S.W.3d 402, 404–05 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Likewise, in the present case, the complainant’s inability to remember consenting due to her unconsciousness brought on by voluntary drug use does not preclude a rational jury from finding that the complainant did not consent.

          Furthermore, the intimate relationship between appellant and the complainant at the time of the sexual intercourse does not, by itself, preclude an implied finding of nonconsent, particularly in light of the 1991 change of the law that allows even a wife to be sexually assaulted by her husband. See Act of May 27, 1991, 72nd Leg., R.S., ch. 900, § 1, 1991 Tex. Gen. Laws 2412, 2412 (current version at Tex. Penal Code Ann. § 22.011(a)(1)(C)).

          Having considered the evidence in favor of and contrary to the verdict in a neutral light, we hold that the evidence upon which appellant relies does not so outweigh the evidence that supports the jury’s implicit finding on nonconsent as to render the verdict clearly wrong or manifestly unjust.

          Accordingly, we overrule appellant’s second ground of error.

Conclusion

          We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).