Brickley v. State

• Decision Date: 15 April 2021
• Docket Number: NO. 03-19-00784-CR,03-19-00784-CR
• Citation: 623 S.W.3d 68
• Parties: James Allen BRICKLEY, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

623 S.W.3d 68

James Allen BRICKLEY, Appellant

v.The STATE of Texas, Appellee

NO. 03-19-00784-CR

Court of Appeals of Texas, Austin.

Filed: April 15, 2021

Justin Bradford Smith, Stacey M. Soule, Austin, for Appellee.

James Allen Brickley, Pro Se.

Erika Copeland, Abilene, for Appellant.

Before Chief Justice Byrne, Justices Baker and Kelly

OPINION

Thomas J. Baker, Justice

James Allen Brickley was convicted of two counts of aggravated sexual assault and sentenced to thirty-five years' imprisonment for both offenses. See Tex. Penal Code §§ 12.32, 22.021. In two issues on appeal, Brickley challenges the sufficiency of the evidence regarding whether a deadly weapon was used or exhibited during the offenses and asserts that the trial court erred by overruling his objection to the admission of evidence of a prior extraneous incident between him and the victim. We will affirm the trial court's judgments of conviction.

BACKGROUND

Brickley and C.M. had an off-and-on dating relationship for several years, and they ultimately had a child together. One day while they were at C.M.'s home, Brickley and C.M. had sexual intercourse during which Brickley accused her of saying another man's name. An argument ensued, and Brickley left the house. The pair continued to argue over the phone and through text messages for several hours. During this exchange, C.M. drove her children to a friend's house and then returned home.

After C.M. returned home, she heard a noise in the house, went to investigate, and saw Brickley coming into her house through the kitchen window. When Brickley entered the home, he chased C.M., took her phone, held her arm behind her back, and punched her while accusing her of cheating on him. Next, Brickley went to the kitchen, grabbed a knife, approached C.M. with the knife, and told her that he would "cut [her] fucking head off." Brickley told C.M. that if she moved, he would kill her and then handed her the knife. C.M. threw the knife under her bed. Brickley told C.M. to find some tape, and C.M. found a roll of packing tape in the closet and handed it to him. Brickley taped C.M.'s hands behind her back, taped her mouth, and placed tape around her neck. Brickley also grabbed bootlaces and tied C.M.'s hands.

When Brickley finished taping C.M.'s body, he led her to her car, told her to sit on the floor of the car, drove her to a creek, and forced her out of the car by pulling the tape around her neck and leading her like "a dog," which choked her. Once they walked away from the car, Brickley picked up a rock, told C.M. to get on her knees, ordered her to perform oral sex on him, told her to turn around and bend over, and inserted his penis into her vagina. After Brickley ejaculated, he choked C.M., picked up a rock, and ordered her to place her head on top of a rock on the ground. After being told to place her head on the rock, C.M. begged Brickley not to kill her, and he dropped the rock that he was holding and told her to walk back to the car. Brickley drove back to C.M.'s home and told her to take a shower and then go to her friend's house to pick up the children. After driving to her friend's house, C.M. told her friend what happened, and her friend called the police.

When the police arrived at C.M.'s friend's home, they took a statement from C.M., drove to C.M.'s home to investigate the scene, and drove to the creek to look for evidence. At C.M.'s home, the police found packing tape with hair on it, bootlaces, and a knife under her bed. The police discovered that the screen to C.M.'s kitchen window had been removed. At the creek, the police found C.M.'s underwear. During their investigation, the police arranged for C.M. to have a sexual-assault-forensic exam. The police ultimately arrested Brickley, and he was charged with two counts of aggravated sexual assault for inserting his penis into C.M.'s mouth and vagina without her consent while using or exhibiting a deadly weapon.

At the trial, C.M., her friend, several law-enforcement officers, the sexual-assault-nurse examiner ("SANE"), and a forensic scientist all testified. In her testimony, the SANE related the description of the events C.M. gave during the exam and discussed injuries to C.M.'s wrists, abdomen, finger, forearms, back, elbow, legs, lips, and neck. The forensic scientist testified that testing performed on the tampon that C.M. was wearing during the assault produced a DNA profile that was consistent with Brickley's DNA.

After considering the evidence presented at trial, the jury convicted Brickley of both counts of aggravated sexual assault. Brickley appeals both of the trial court's judgments of conviction.

DISCUSSION

In his first issue on appeal, Brickley challenges the sufficiency of the evidence supporting his convictions. In his second issue, Brickley contends that the trial court erred by denying his objection to C.M.'s testimony describing a prior incident of abuse.

Sufficiency of the Evidence

In challenging the sufficiency of the evidence, Brickley does not assert that there was insufficient evidence establishing that he intentionally or knowingly penetrated C.M.'s sexual organ and mouth with his sexual organ and without her consent; instead, Brickley argues that the evidence presented in this case was insufficient to establish that he used or exhibited a deadly weapon during the offense. More specifically, Brickley contends that both counts of the indictment in this case alleged that he "used or exhibited a deadly weapon, to-wit: a knife and a rock." Accordingly, Brickley argues that to be convicted under either count, the jury had to "definitively and distinctively" find that he used or exhibited a knife and a rock and that they were both deadly weapons. Moreover, although Brickley acknowledges that C.M. testified that he used "a large stone" during the assault and that one of the investigating officers explained that a large rock is capable of causing serious bodily injury or death, Brickley highlights that C.M. never identified a particular rock from the creek bed as the one used during the assaults and that the State never produced the actual rock at trial. For these reasons, Brickley urges that the evidence was insufficient "[b]ecause the State failed to prove a rock in this case was a deadly weapon."

"Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt." Stahmann v. State , 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). In making this determination, "[w]e view the evidence in the light most favorable to the verdict and consider all of the admitted evidence, regardless of whether it was properly admitted." Id. "The jury is the sole judge of credibility and weight to be attached to the testimony of the witnesses." Id. "Juries can draw reasonable inferences from the evidence so long as each inference is supported by the evidence produced at trial," id. , and are "free to apply common sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences from the evidence," Eustis v. State , 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). "When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and defer to that determination." Merritt v. State , 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).

Appellate courts must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State , 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Appellate courts also must bear in mind that "direct and circumstantial evidence are treated equally" and that "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor" and "can be sufficient" on its own "to establish guilt." Kiffe v. State , 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Furthermore, reviewing courts "measure the sufficiency of the evidence by the so-called hypothetically correct jury charge, one which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." See DeLay v. State , 465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014). The evidence is legally insufficient if "the record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense" or if "the evidence conclusively establishes a reasonable doubt." Kiffe , 361 S.W.3d at 107 (quoting Jackson , 443 U.S. at 320, 99 S.Ct. 2781 ).

Under the Penal Code, an individual commits aggravated sexual assault if he intentionally or knowingly "causes the penetration of the ... sexual organ of another person by any means" or "the mouth of another person by the sexual organ of the actor, without that person's consent" and "uses or exhibits a deadly weapon in the course of the same criminal episode."

Tex. Penal Code § 22.021(a)(1)(A)(i)-(ii), (a)(2)(A)(iv). "For purposes of aggravated sexual assault, a ‘criminal episode’ begins when the attacker in any way restricts the victim's freedom of movement and it ends with the final release or escape of the victim from the attacker's control." Yates v. State , 370 S.W.3d 772, 774 (Tex. App.—Texarkana 2012, pet. ref'd). "[T]he use or exhibition of a weapon at any time during this period will elevate the crime to" aggravated sexual assault. Burns v. State , 728 S.W.2d 114, 116 (Tex. App.—Houston [14th Dist.] 1987, pet. ref'd). Accordingly, the evidence need not establish that the defendant used or exhibited the deadly weapon "during the actual sexual assault itself." See Yates , 370 S.W.3d at 774.

The...