Casey v. State, 03-03-00030-CR.

• Decision Date: 10 March 2005
• Docket Number: No. 03-03-00030-CR.,03-03-00030-CR.
• Parties: David Wayne CASEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

160 S.W.3d 218

David Wayne CASEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 03-03-00030-CR.

Court of Appeals of Texas, Austin.

March 10, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert N. Udashen, Sorrells & Udashen, PC, Cynthia M. Barbare, Dallas, for appellant.

Charles Patrick Reynolds, Dallas, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

The opinion and judgment dated December 2, 2004, are withdrawn. The State's motion for rehearing is overruled.

Appellant David Wayne Casey, Jr., and codefendant Scott Cannon were jointly tried for sexual assault aggravated by the administration of gamma hydroxybutyrate (GHB), a "date rape" drug. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i), (2)(A)(vi) (West Supp.2004-05). The jury found Cannon not guilty and convicted appellant of the lesser included offense of sexual assault, for which it assessed a twenty-year prison term. See id. § 22.011(a)(1)(A). We hold that the evidence is legally and factually sufficient to sustain the jury's verdict, but that the trial court erred by admitting certain photographs in evidence and by commenting on the weight of the evidence in its jury charge. We will reverse the conviction and remand for a new trial.

Background

The complainant, K.T., was employed as a "shot girl" at a Dallas topless bar. She was at the bar on the night of April 24, 2000, but not working. Around 7:30 p.m., she called appellant, with whom she was acquainted, to ask what he was doing that night. About two hours later, appellant arrived at the club with his friend Cannon. K.T., appellant, and Cannon remained at the bar for an hour. All three were drinking but K.T. testified that she was not intoxicated. Appellant told K.T. that he and Cannon were planning to go to appellant's house to watch videos, and he invited her to join them. She accepted the invitation, and she followed in her own car as they drove to appellant's house.

The three arrived at appellant's house at about 11:00 p.m. and were soon joined by appellant's housemate, Jessie Diaz, who arrived with a female companion identified only as Brandy. K.T., appellant, and Cannon were drinking beer, but someone suggested that they drink shots. Leaving K.T. alone in the living room, the others went to the kitchen to prepare the shots. K.T. testified that by this time, she was beginning to feel uncomfortable and planned to leave at the first opportunity. The group returned from the kitchen and Diaz handed her a shot of vodka. K.T. did not care for vodka, but she decided to drink the shot and then leave. Moments after drinking the vodka, however, K.T. began to feel strange. When she tried to stand, her vision became blurred and she passed out.

K.T.'s memory of the next several hours was sketchy, as she drifted in and out of consciousness. She remembered vomiting and defecating on herself, and being moved from the living room to the hallway. She recalled people standing over her and hearing appellant and Cannon discuss what to do with her. At one point, she became aware that she was naked and that appellant was between her legs penetrating her with his penis. Cannon was walking back and forth, as if he had a camcorder. K.T. testified that she also remembered Cannon penetrating her while appellant watched. She recalled flashes that caused her to squint her eyes.

K.T. regained full consciousness at 4:30 a.m. She was naked and lying on the floor of appellant's bedroom. She went to the bathroom, which woke up appellant. He told her that she had thrown up on herself and that he had washed her clothes. Her shirt was still wet, so she borrowed a shirt from appellant. K.T. got dressed and left the house. She saw no one else there.

K.T. testified that she still felt sick and "foggy." She managed to drive to Chris Nunn's house. Nunn was K.T.'s on-again, off-again boyfriend. Nunn had introduced K.T. to appellant and Cannon, but had later advised her to avoid them. K.T. had been told by appellant that Nunn called while she was asleep and knew that she spent the night at appellant's house. K.T. told Nunn what had happened to her. Nunn called the police and then drove K.T. to Parkland Hospital. Semen recovered during K.T.'s physical examination contained appellant's DNA. No DNA link to Cannon was found. No trace of GHB was found in K.T.'s blood or urine, but a toxicologist testified that the drug has a half-life in the body of only twenty minutes to an hour.

A warrant to search appellant's house was executed on June 25, 2000, the day after the alleged assault. A soft drink bottle containing sixty-four grams of a liquid identified as GHB was found in the refrigerator's freezer compartment. A Polaroid camera and four Polaroid photographs of K.T. were found in the kitchen. One of these photographs shows K.T. lying naked in the hallway, and the others are closeups of K.T.'s vaginal area. Two 35 mm. cameras were found in Diaz's bedroom. One of these cameras contained exposed film that, when developed, showed: (1) photographs of an unidentified, naked woman; (2) photographs of Cannon vomiting; (3) a photograph of Diaz having sexual intercourse with an unidentified woman; (4) a photograph of appellant making a hand sign and another showing him urinating; and (5) photographs of Cannon lying on a bed with an unidentified naked woman and an unidentified man. No camcorder was found in the house.

Cannon testified in his own behalf. He said that K.T. had been "very friendly" with appellant at the bar, sitting next to him and resting her hand on his shoulder. When they arrived at appellant's residence, Cannon noticed that K.T. took a soda bottle with her into the house. K.T. sat next to appellant on the couch as they watched videos. According to Cannon, "They were touching, feeling, just kind of half kissing type thing." Diaz and his companion arrived, and Diaz later poured shots of vodka for everyone. K.T. drank her shot with no apparent ill effects, but she did appear to be "kind of buzzed" and she "became more aggressively touching and feeling." After about an hour, appellant and K.T. went to appellant's bedroom.

Cannon testified that he was too intoxicated to drive, so he decided to spend the night in appellant's spare bedroom. As he passed the half-opened door to appellant's bedroom, he saw appellant and K.T. embracing. Cannon said he was awakened in the middle of the night by the sound of K.T. vomiting in the hall. Cannon wiped the vomit from K.T.'s face with a towel, then woke appellant, told him to take care of K.T., and went back to bed. Cannon testified that he did not take any photographs or videos of K.T., and that he did not see anyone else do so. He denied touching K.T. "in any sexual way."

Sufficiency of the Evidence

When the sufficiency of the evidence to sustain a criminal conviction is challenged, we must determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App. 1981) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004) (factual sufficiency). In a legal sufficiency review, we look at all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781). In a factual sufficiency review, we look at the evidence in a neutral light and consider the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex.App.-Austin 1992, no pet.). Although due deference still must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence, we may disagree with the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000). The evidence will be deemed factually insufficient to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85; see Johnson, 23 S.W.3d at 11.

Appellant argues that because the jury did not convict him of aggravated sexual assault, the jury necessarily found that he did not administer GHB to K.T. He then asserts without citation of authority that "if K.T. really was under the influence of GHB, she voluntarily ingested it, and the automatic statutory consent element is eliminated." But as the jury was correctly instructed by the trial court, a sexual assault is without consent if the other person has not consented and the actor knows the other person is unconscious or physically unable to resist. Tex. Pen.Code Ann. § 22.011(b)(3). Under section 22.011(b)(3), sexual intercourse is without consent when assent in fact is not given and the actor knows that the victim's impairment is such that resistance is not reasonably to be expected. Elliott v. State, 858 S.W.2d 478, 485 (Tex.Crim.App. 1993). In Elliott, the evidence was held sufficient to prove lack of consent where the victim of the sexual assault was unconscious due to voluntary intoxication. Id.

Appellant also urges that K.T. had a motive to lie about her conduct on the night in question. He points to K.T.'s testimony that she and Nunn had been dating for some time, that marriage had been discussed, and that she still loved Nunn even though they had broken up. K.T. acknowledged during cross-examination that Nunn "wouldn't be happy" if he learned that she had sexual intercourse with appellant. Appellant suggests that K.T. falsely accused him of assaulting her in order to preserve her hopes of reuniting with Nunn. The...