Casey v. State

• Decision Date: 28 February 2007
• Docket Number: No. PD-0548-05.,PD-0548-05.
• Citation: 215 S.W.3d 870
• Parties: David Wayne CASEY, Jr., Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

215 S.W.3d 870

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

No. PD-0548-05.

Court of Criminal Appeals of Texas.

February 28, 2007.

Cynthia Barbare and Robert N. Udashen, Dallas, for Appellant.

Patricia Poppoff Noble, Asst. District Atty., Dallas, Matthew Paul, State's Atty., Austin, for State.

OPINION

HOLCOMB, J., delivered the opinion of the Court, in which, KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant David Wayne Casey was charged with aggravated sexual assault under Texas Penal Code § 22.021(a)(1)(A)(i), (2)(A)(vi) (Vernon Supp.2006). He was tried before a jury and convicted of the lesser offense of sexual assault. The Third Court of Appeals reversed appellant's conviction, holding that twenty-four photographs admitted over objection were offered merely to show appellant's propensity to commit crimes and were unfairly prejudicial. Casey v. State, 160 S.W.3d 218, 226-28 (Tex. App.-Austin 2005) (citing Tex.R. Evid. 401, 404 & 403). In a second issue, the court of appeals concluded that the use of the word "victim" in the jury charge was "clearly calculated to injure appellant's rights and was therefore harmful." Id. at 230 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g)). We reverse the judgment of the court of appeals.

I. Relevant Facts

Appellant and one of his friends, Scott Cannon, were tried jointly for drugging and sexually assaulting K.T., the complainant. Cannon was acquitted, appellant was convicted, and the jury sentenced him to a twenty-year prison term.

K.T. met appellant at a party a couple of months prior to the offense. Chris Nunn, K.T.'s then-boyfriend and appellant's friend, introduced K.T. to appellant at the party. By the time of the offense, K.T. was no longer dating Nunn.

On the night of the offense, K.T. was working as a waitress at topless bar.¹ She called appellant on her cell phone to see what he was doing. K.T. got another call and told appellant that she would call him back, but appellant and Cannon arrived at the bar a short time later to see K.T. K.T. then conversed with appellant and Cannon and had at least one drink with them.² Appellant and Cannon invited K.T. to appellant's house "to hang out," and she accepted.

K.T. followed Cannon and appellant to his house in her own car. After arriving at appellant's house, the three were joined by appellant's roommate, Jessie Diaz, and his female companion, Brandy. Appellant, Diaz, and Cannon went into the kitchen and prepared some vodka "shots" for everyone. When the men returned to the living room, the shots were passed around to everyone; Diaz handed K.T. a shot. K.T. testified that she drank only part of the shot because she did not like the taste and she generally did not drink much. However, K.T. was encouraged³ to drink the rest of it, and she did.

K.T. testified that she felt extremely intoxicated about one minute after drinking the vodka shot and lost consciousness, although she had brief intervals of partial lucidity throughout the rest of the evening. K.T. described these intervals as follows: "[I felt] weak and nauseous mostly, most of all nauseous. And I mean I could see, but it was just like I would see double. Like I would see for a second then I would see it double, and then I would throw up and then I would pass back out." K.T. further testified that these moments of partial coherence lasted approximately a minute or less.

K.T. remembered first being dragged from the living room and into a hallway. At this point, she realized her shirt had been removed and she was vomiting and defecating. She saw appellant and Cannon standing over her discussing what to do with her. While in the hallway, she perceived several camera flashes, which caused her to squint her eyes. The next recollection she had, she was naked and appellant "was between her legs," penetrating her with his penis. Cannon was standing behind appellant, and K.T. believed that Cannon was using a camcorder, because she could "see the light flashing." K.T. next recalled Cannon penetrating her while appellant watched, although Cannon was "having problems" because she was "trying to close [her] legs."

K.T. testified that she felt "helpless" and explained that she tried to tell them to stop, "but I really couldn't move my mouth or my arms or anything. I was trying to but I was very weak. The first time I tried to say something I was kind of crying . . . I was just saying, `No.' But it wasn't very loud. I noticed I was really weak. I couldn't really do anything." K.T. testified that when she awoke the next morning, she was naked and lying on the floor in appellant's bedroom. Appellant told her that she had gotten "so f___d up last night," and that he had had to wash her clothes. Although still impaired, K.T. got dressed and drove to Nunn's house. Nunn drove her to a hospital for a rape exam. Police questioned K.T. about the offense while she was at the hospital.

K.T. testified that she had drunk very little alcohol prior to going to appellant's house, and once she was there, she drank only a sip of one beer and then the vodka shot. K.T. explained that she was not a heavy drinker, generally, and there was only one time in her life that she could recall drinking as much or more than she drank that night; but she further testified that that amount only made her feel "buzzed," and she did not pass out, vomit, or become incontinent on that occasion.

Defense counsel vigorously cross-examined K.T. about how much alcohol she had drunk, and suggested that K.T. voluntarily drank herself into the incoherent state she was in that evening. Appellant also offered evidence that K.T. had personal reasons to testify falsely about the incident. Specifically, defense counsel questioned K.T.'s motives, implying that K.T. had actually consented to sex with appellant, but later decided to lie so that her on-again, off-again boyfriend, Nunn, would not be angry with her and would "take her back."⁴

Results from the rape exam indicated that appellant was the contributor of semen recovered from K.T.'s vagina. Cannon was ruled out as a contributor. The results of a urinalysis test for gamma hydroxybutyrate (GHB), commonly known as a date-rape drug, was negative. However, at trial, the State offered the testimony of a toxicologist who explained that GHB has a half-life in the body of only twenty minutes to an hour.

Appellant's house was searched, and police recovered the following items: a plastic coke bottle containing GHB; two exposed but undeveloped rolls of film from Diaz's bedroom; one Polaroid photograph depicting K.T. passed-out, unclothed, and lying in the hallway; and three Polaroid close-up shots of her vagina.⁵

The State offered into evidence photographs made from the rolls of undeveloped film in two distinct groups. Except for the one Polaroid photograph of K.T. lying naked on the floor, appellant objected to all of the photographs based on Rules of Evidence 404(b) and 403. The first group, State's exhibits 71 through 76 and 78, included two photographs from the undeveloped rolls of film, which depict an unidentified and unconscious naked woman⁶ lying on a couch or a bed. One photograph from this group shows a man placing a bottle or can into this woman's vagina, another shows a close-up of her vagina, and another shows an unidentified man performing oral sex on her.

The second group of photos, State's exhibits 77 and 82 through 97, depict various people in and around appellant's house. One photograph, State's exhibit 95, shows Cannon and two other participants willingly engaging in a sex act and posing for the camera. This photograph, along with State's exhibits 96 & 97, is one in a series of photographs depicting Cannon, another woman (who is clearly conscious), and another man. State's exhibit 95 depicts the naked woman lying on a bed between Cannon and the other man. She has her legs spread for the camera while Cannon and the other man are kissing her neck and face. State's exhibit 96 depicts the same woman and Cannon. Her legs are spread wider, she is smiling at the camera, and she is spreading her labia open with the fingers of one hand. State's exhibit 97 is a close-up shot of the same woman's vagina. In this photo, she is spreading her labia with both hands. Cannon's knee and the other man's hand are also visible in the background of the photo.

Also within this second group of photos is a photograph of Diaz, which was admitted as State's exhibit 77. He is shown having what appears to be consensual intercourse with an unidentified woman in his bedroom.

Another series of photographs from this second group depicts appellant, Cannon, and Diaz in and outside of appellant's house. Several photographs show Cannon intoxicated, sitting or lying on the ground. In one photograph, he is vomiting on the ground. In another photograph, appellant is "flashing" a gang sign in the kitchen of the house, and in another photograph, he is urinating on the side of the house.

In sum, the State argued primarily that all of the photographs were admissible to connect appellant and Cannon as parties to the instant offense, to show motive, and to rebut appellant's defensive theories that it was K.T. who brought the GHB, voluntarily became intoxicated, and consented to the sexual acts.

The trial judge conducted extensive hearings outside the jury's presence on the admissibility of these photographs. She examined all of the photographs, articulated their relevance and probative value on the record,⁷ and allowed the parties to fully develop their evidentiary arguments.⁸ She initially ruled that only some of the photographs were admissible, but toward the end of testimony the next day, the State reoffered the rest⁹ and the trial judge admitted them. She noted, inter alia, that they tended to show the knowledge and participation of all three men— appellant, Cannon, and Diaz—in this...