MAULDIN v. STATE

KENNETH BOYD MAULDIN, Appellant,
v.
THE STATE OF TEXAS, Appellee.

No. 05-09-00513-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion issued March 17, 2010.

DO NOT PUBLISH. Tex.R.App.P. 47.

Before Justices FITZGERALD, MURPHY, and MYERS.

OPINION

Opinion By Justice FITZGERALD.

A jury convicted appellant Kenneth Boyd Mauldin of the sexual assault of his nineteen-year-old niece, Melinda Mauldin ("Melinda"). The jury assessed his punishment at twenty years' confinement. In this Court, appellant challenges the legal and factual sufficiency of the evidence supporting the jury's verdict and contends the trial court charged the jury erroneously. We affirm.

Sufficiency of the Evidence

In his first two issues, appellant argues the evidence is legally and factually insufficient to support his conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Appellant argues specifically that the evidence is insufficient to support the jury's finding he acted without consent. Appellant's indictment charged him with sexual assault, alleging he intentionally and knowingly caused penetration of Melinda's sexual organ, without her consent, with his own sexual organ. See Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2009). A sexual assault is without the consent of the complainant if she has not consented and (a) the actor knows she is unconscious or physically unable to resist, or (b) the actor knows she is unaware the sexual assault is occurring. Id. § 22.011(b)(3), (5). Because the issue is consent, we focus primarily on the testimony of the complainant and the defendant.

The Complainant's Testimony

Melinda testified she was a nineteen-year-old freshman at the University of Dallas in September of 2007. Her family lived in the San Antonio area, but appellant-her father's older brother-worked in Dallas during the week. Appellant had picked Melinda up and taken her to dinner several times before the date of the offense. Melinda acknowledged that, beginning with their second dinner, her uncle had ordered alcoholic drinks for her although she was not legally old enough to drink. On the evening of the offense, appellant called and picked her up at around eight o'clock. On their way to the restaurant, appellant pulled out a bottle of sangria, drank some, and offered the bottle to her. The two passed the bottle back and forth at first, but after appellant had taken a couple of sips, he gave the bottle to Melinda and encouraged her to "chug" the remainder. She drank the rest of the sangria herself in appellant's truck.

When they entered the restaurant, appellant told the waiter it was their anniversary, so they needed a special table. (He always told waiters they were married so she would not have to show proof of her age.) Appellant ordered for both of them; they had dinner and two margaritas each. They played cribbage at the table, but appellant joked with the waiter that they were playing strip poker. When Melinda left the table to go to the restroom, she was dizzy from the alcohol and had trouble walking back. They left the restaurant to see a movie but arrived at the theater too late. Appellant asked Melinda if she wanted to go to his place and watch a movie. She had stayed there with her mother once before and remembered he had "stacks and stacks" of movies, "so [she] didn't see anything wrong with it." On the way, appellant opened a beer and handed it to her; she drank it. They passed a Condom Sense store and appellant told her it was a "real fun store" and said they should stop and check it out. They walked up and down the aisles in the store, and he suggested different products to her; before they left he bought aphrodisiac chocolates, saying "these are really good, you have to try them."

Melinda testified that she has gaps in her memory of the evening beginning at this point in time. She does not remember leaving the store or driving to appellant's hotel. She remembers playing cribbage at his place. She poured each of them a glass of wine from a bottle he opened; she knows she finished off the bottle. Appellant told her to look at his new movies on a table and pick one for them to watch, but they were pornographic, and she said she did not want to watch them. Her next memory is of playing cards on appellant's bed and a pornographic movie playing in the bedroom. She recalls appellant pulling down her shirt to see her breasts; she quickly pulled the shirt back up. The next thing she remembers is waking up with appellant on top of her, his penis inside her. Her pants and underwear had been removed. She screamed, pushed him off, and gathered her clothes. All she remembers from the trip back to her dormitory is appellant telling her "what happens in Dallas stays in Dallas," which she understood to mean not to tell anyone what he had done to her.

Melinda conceded that when appellant asked her if she wanted drinks when they had dinner together, she had said yes. She also admitted she was having a good time in the Condom Sense store, laughing and making jokes with appellant. She agreed she had shown appellant a tattoo on her hip, but denied she had to unzip or pull down her pants to do so. She denied ever consenting to having sex with appellant.

The Defendant's Testimony

Appellant testified that the first time he bought his niece alcohol, it was at her suggestion. He agreed not to tell her father that she was drinking. That is when he first uttered "what happens in Dallas," and she finished the phrase with "stays in Dallas." She always ordered her own drinks; he never ordered for her.

On the night in question, he stopped at the liquor store before picking her up because it was on his way and would be closed when he returned to his hotel. He purchased a case of beer and three bottles of wine for the coming week. When Melinda got in his truck she noticed the sangria bottle in back; she commented on the unusual bottle and said she would like to have it when he was finished. Then she asked if she could have some of the sangria. She opened the bottle and took the first drink while appellant was driving. (Appellant did not remember whether the bottle required a cork screw, but he kept one in the truck.) Then, in the restaurant parking lot, they passed the bottle back and forth until the sangria was gone. He did not encourage her to drink, and he believes they drank the same amount of the sangria.

At their second dinner, the two of them had "connived" to tell the waiter they were married so Melinda would not be asked for proof of her age. He did this again as they entered the restaurant that night. They each had two large margaritas, and they played cards. He felt "a little tipsy" as they left, but she did not appear intoxicated. They had planned a movie, but the box office was closed. He said they had a card game to finish, so he asked her whether she would prefer to go to a bar, back to the restaurant where they could drink without any problem, back to the dormitory, or to his place to finish the game. She said they should go to his place.

She asked for beer on the way to his place, and he asked her to hand him one; they finished the beers while driving to his hotel. On the way they passed the Condom Sense store; it was about half a mile from his hotel, and he had been there before. Melinda told him she had wanted to go in the store on a previous trip to Dallas, but chaperones had prevented it. He said if she wanted to go in the store they could, and she said they should. She was a little embarrassed and giddy at first, but she became more comfortable with him. She read jokes aloud and played with sex toys; they made sexual jokes back and forth and had a good time. They were in the store for about fifteen minutes. He bought the aphrodisiac chocolates after she asked him what they were.

They arrived at his hotel between ten o'clock and ten thirty. Melinda helped him carry in his suitcase, the case of beer, and the remaining two bottles of wine. She did not seem drunk to him then. She told him to get the cards ready and she would pour them a glass of wine. Their "consensus" was they would play cards on the bed because the room was messy. They were both "a little tipsy" by then. Appellant suggested Melinda choose a movie from his collection, but she found a group of pornographic movies (which he had picked up for himself and his wife), and she wanted to watch one of those. Appellant thought this was"weird" at the time, but he agreed, and she put it in the player. They continued drinking wine, playing cards, and commenting on the movie. At one point she pulled her top down and asked him how her breasts compared with the women in the film; she left her top down for some fifteen to twenty seconds. She also unzipped her pants to show him her tattoo, pulling them down far enough to expose pubic hair. At this point, Melinda spilled her wine, and appellant went to refill her glass. When he returned, "without any notice or provocation," Melinda took her pants and underwear off, laid back on the bed, and spread her legs. He inserted first one finger, and then two in her vagina, but then started to get an erection, came to his senses, rolled off the bed, and told Melinda to get dressed. He drove her back to the dormitory and said a "pleasant good-bye, and I'll see you later." She did not seem intoxicated as she walked into the dormitory.

Appellant denied touching or penetrating Melinda other than digitally. He testified he was ashamed and embarrassed by his behavior, but Melinda was awake and enjoying it. She never passed out in his presence, and the contact was definitely consensual.

Relevant Additional Testimony

Two girls who lived in Melinda's dormitory saw her around midnight, immediately after appellant had dropped her off. They testified she was very drunk, crying that her uncle had raped her, and unable to walk on her own. The girls called their Resident Assistant, who testified Melinda was crying hysterically and was intoxicated. Melinda's roommate testified she did not arrive back at the dorm that night until around one thirty, and Melinda was still "pretty hysterical" and definitely was drunk. Paramedics took Melinda to the hospital. The physician who examined Melinda there testified she had bruising and injuries consistent with non-consensual penetration of the vagina. Christie Wells, a forensic biologist for the Southwest Institute of Forensic Sciences ("SWIFS), testified no seminal fluid or pubic hair was present in swabs taken during Melinda's examination. Chris Heartsill, the supervising toxicologist at SWIFS, testified Melinda's blood alcohol level was .09 at four o'clock in the morning.

Analysis

Melinda testified that she did not consent to any sexual act with appellant. She further testified that she blacked out several times during the evening as a result of the significant amount of alcohol she had consumed. She stated she awoke at one point to find appellant on top of her with his penis inside her. Apellant testified Melinda never passed out that night and, in fact, never appeared to be intoxicated. He admitted digitally penetrating Melinda, but he said she consented to his actions. He denied any other act of penetration.

The two versions of events are significantly different. The jury believed Melinda, however, and the jury is the sole judge of witnesses' credibility. See Margraves, 34 S.W.3d at 919. Moreover, the level of intoxication Melinda described in her testimony is consistent with the testimony of witnesses at her dormitory. It is also consistent with her elevated blood alcohol level hours later that night. Whether we look only at the evidence supporting the verdict, or at all the evidence neutrally, a rational factfinder could have concluded that Melinda did not consent and that she was unconscious when the assault occurred or was unaware it was occurring. And the evidence supporting the conviction is not so weak that the verdict seems clearly wrong and manifestly unjust. Applying our settled standards, we conclude the evidence is sufficient to support the jury's finding that appellant's actions were taken without consent. See Jackson, 443 U.S. at 319; Roberts, 220 S.W.3d at 524. We overrule appellant's first and second issues.

Charge Error

In his third issue, appellant contends the trial court's charge erroneously defined sexual assault in general terms prior to the application paragraph, resulting in the possibility of confusion and a less-than-unanimous verdict. We disagree. The charge correctly sets forth the definition of sexual assault:

A person commits an offense if the person intentionally or knowingly causes the penetration of the female sexual organ or another person by any means, without that person's consent.

See Tex. Penal Code § 22.011(a)(1)(A). The charge goes on to instruct the jury on relevant law concerning lack of consent, intentional and knowing conduct, and intoxication. Then, in the application paragraph, the charge states:

Now, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did intentionally or knowingly cause penetration of the female sexual organ of . . . the complainant, without the consent of the complainant, by means of an object, to-wit: the sexual organ of defendant, then you will find the defendant guilty of sexual assault as charged in the indictment.

The jury sent a note during its deliberations, identifying these two provisions of the charge by page and paragraph, and asking "which of these two should we adhere to? by any means or w/ sexual organ?" The trial court responded in writing, using the same identifying page and paragraph numbers the jury had used:

Page one, paragraph two, sets out the general law regarding the definition of sexual assault. Page two, paragraph three, is the specific law as it applies to this particular case.

Appellant offers nothing more than conjecture that the jury remained confused after this response and thus returned a less-than-unanimous verdict. We conclude the trial court's charge correctly set forth the law and applied it to the facts of the case. Moreover, the trial court correctly and clearly responded to a question from the jury concerning the charge. We find no error, and we overrule appellant's third issue.

We affirm the trial court's judgment.

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