Court of Appeals of Texas, Third District, Austin
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 66688, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
Before Justices Puryear, Goodwin, and Field
Melissa Goodwin, Justice
A jury convicted Anthony Craig Mathis of sexual assault. See Tex. Penal Code § 22.011. Mathis elected to have the trial court assess punishment. See Tex. Code Crim. Proc. art. 37.07(b). He pled true to enhancement paragraphs in the indictment, and the court assessed his punishment at confinement for life in the Texas Department of Criminal Justice. See Tex. Penal Code §§ 12.33, 12.42(d). In a single point of error on appeal, Mathis complains that the trial court erred in denying his request for an instruction in the jury charge on the lesser-included offense of assault. Finding no error, we affirm the trial court's judgment of conviction.
The jury heard evidence that in January 2010 Mathis and the victim, Tracy Shores, had been involved in a romantic relationship for approximately one year (excluding a period where the two broke up for about five months) but were not dating each other exclusively. Shores described their relationship as romantic but not committed; while they had had sexual relations five or six times, both were free to date other people. On the night of January 28, 2010, Shores was at the house of a male friend when she received a phone call from Mathis informing her that he was waiting for her at her house. She was surprised by this because the two had no plans to meet that night. However, because her two sons were there, she left her friend's house and returned home. When she arrived, she found Mathis seated in his car. He seemed intoxicated and started asking her where she had been and who she had been with. She invited him inside, and he spent the night. Although they shared a bed, they did not engage in any sexual activity.
The next morning when Shores got up to take her children to school, Mathis began questioning her again about her whereabouts the night before, calling her a derogatory name when she failed to answer to his satisfaction. When she returned home after taking her sons to school, Shores got undressed and sat on the edge of the bed, intending to get back into bed to sleep some more. She asked Mathis to refrain from calling her derogatory names in front of her children. In response, Mathis began demanding once again to know where she had been and who she had been with the night before. He became more and more upset when she did not adequately respond. To avoid the confrontation, Shores went into her kitchen, but Mathis followed, shadowing her movements around the kitchen. Shores became afraid and wanted to leave the house but Mathis prevented her from leaving by blocking the back door. As she tried to maneuver around him, he grabbed her by the hair, grabbed her arms, and forced her back to the bedroom. He then forced her onto the bed into a position with her head down, chin against her chest, and her legs up, knees to her chest, so that she could not breathe. He continued calling her names and demanding that she provide details about who she was with and what they were doing when he had called the night before. Shores eventually disclosed that she was with her friend and told Mathis that they were having sex when he called. She testified that she told him this because Mathis got more and more upset if she said anything contrary to what he wanted to hear. Mathis called her derogatory names and demanded details about what sexual activities they engaged in.
At one point, Shores attempted to run into the bathroom to escape, but Mathis followed, grabbed her feet, pulled her to the floor, and dragged her back to the bedroom. Shores struggled to resist, believing that if he got her back into the bedroom she was "not going to come back out." Once in the bedroom again, Mathis forced Shores back into the position where she could not breathe. He continued to interrogate her and she again told him what he wanted to hear, afraid that the situation would worsen if she did not. Mathis began striking Shores on the head and face with an open hand, "hit[ting] her good." He then started taking his clothes off, telling Shores that she was going to stay in her house and do whatever he wanted, including engaging in certain sexual acts. He threatened that if she did not, he would "kick her out the door." He also impliedly threatened her and her children by asking her who he would hit if he shot through her window.
Mathis then told Shores that she was going to "suck [his] dick, " calling her a derogatory name and continuing to strike her face as he made his demand. He then forced her to perform oral sex on him as he hit her and instructed her how he wanted it done. Mathis stopped her in order to have vaginal intercourse with her, forcing her onto her stomach on the bed and penetrating her from behind. He ejaculated during intercourse and then again forced Shores to perform oral sex on him. Shores testified that at no time did she consent to engaging in any sexual activity with Mathis that day. She said she was afraid to tell him no and testified that she complied with his demands because she feared he would hurt her badly if she refused.
After he was finished, Mathis laid down beside Shores on the bed. She then told him that her cousin was coming by and that she needed to call her to tell her not to come. When Mathis allowed her to go into the kitchen to make the call, Shores grabbed her robe and her cell phone and ran out the back door. She ran next door, barefoot, clad only in her open robe, as she called 911. No one answered her knock at her neighbor's house, so she ran across the street while talking on the phone to the 911 operator. Mathis pursued her.
At trial, Allen Curl, the neighbor across the street, testified that on the morning of January 29, 2010, he was at home watching television with his front door open when he saw his neighbor from across the street running up his driveway. She was barefoot and wearing only a thin nightgown or housecoat that was wide open in the front. Behind Shores, Curl saw a man he had never seen before "double timing it" after her. When the man saw Curl at his door, he turned, got into his car, and drove off. Curl described Shores as "real nervous, " "real panicky, " and "afraid of something." He knew she was "real upset" because she was shaking and crying. Curl was unable to see to get the numbers off the license plate of Mathis's car, as Shores requested, but Shores was able to give the 911 operator a partial number.
After Mathis drove off, Shores went back across the street to her house where she finished her 911 call and stood in her carport until the police arrived. The responding officers found Shores crying and upset and complaining of pain. In addition, they observed swelling on the left side of her face. They called for an ambulance to take Shores to the hospital for a sexual assault examination and to check for injuries.
At the hospital, Shores was examined by sexual assault nurse examiner, Debra Kleypas. During her examination of Shores, the nurse found soreness on her head, cheeks, neck, rib cage, and upper leg—injuries consistent with the events Shores described. Kleypas testified that she found no injuries or damage during the genital examination, but that she did not expect to find such given Shores's medical and childbirth history. She testified that such negative findings are common in a mature woman with a history like that of Shores and are not inconsistent with sexual assault. The nurse took a number of swabs from Shores's genitals, mouth, and anal area for evidence collection because Shores had indicated that Mathis had ejaculated.
Those swabs, along with samples collected by police from the cheeks of Mathis, were submitted to the Texas Department of Public Safety Laboratory for DNA testing. The forensic analyst from the lab who performed the DNA analysis testified that she detected semen on the vaginal swab. Based on a comparison of DNA profiles, Mathis could not be excluded as ...