Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mayes v. State

Court of Appeals of Texas, Seventh District, Amarillo

November 28, 2017

TOBY JAY MAYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         On Appeal from the 181st District Court Randall County, Texas Trial Court No. 26, 586-B, Counts I - III; Honorable John B. Board, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          OPINION

          Judy C. Parker, Justice

         Appellant, Toby Jay Mayes, appeals his convictions for two counts of sexual assault[1] and one count of unlawful possession of a firearm by a felon.[2] Each of the offenses was enhanced by proof of two prior felony convictions.[3] The jury that found appellant guilty also assessed life sentences for each of the offenses. We will reverse in part, reform the trial court's judgments, and affirm as reformed.

         Factual and Procedural Background

         The complainant in this case was a twenty-three year old male at the time of the offense. Although the complainant is an adult, he is mentally slow and still lived at home with his parents because he was unable to provide for himself. The complainant obtained a "middle school level" of education.

         Appellant and the complainant became acquainted through contact at the bicycle store at which appellant worked. Through this relationship, appellant asked the complainant to come to appellant's residence and help him install a satellite dish. The complainant agreed and, on June 21, 2015, rode his bicycle to appellant's residence. However, when the complainant arrived, the satellite dish had already been installed.

         Appellant invited the complainant into his home. During an ensuing conversation, appellant asked the complainant if he could trust him. When the complainant said that he could, appellant retrieved a loaded gun and a box of ammunition from a cubbyhole attached to the outside of appellant's trailer. Appellant offered to let the complainant hold the gun but, before handing it to him, appellant first cleared the chamber and removed the magazine. The complainant noted that the bullets removed from the gun were hollow-point bullets. Appellant offered to let the complainant fire the gun into a nearby lake but the complainant declined because he "didn't think it was a good idea." Appellant took the gun from the complainant and returned the gun and ammunition to the location outside the home. When appellant reentered the home, he told the complainant not to tell anyone about the gun because appellant "could go to prison for having it."

         Appellant and the complainant then watched some movies. During the movies, appellant asked the complainant to spend the night. The complainant agreed due to his concern about getting lost in the dark riding his bike home. It was agreed that the complainant would sleep on the floor.

         Toward the end of the movies, appellant asked the complainant to come over to where appellant was sitting. When the complainant did so, appellant asked him to unbuckle his pants. The complainant refused. Appellant then pulled down the complainant's pants and began stroking his penis. Appellant put the complainant's penis in his mouth. The complainant was in shock and did not know what was happening because he had never had sexual relations prior to this incident. The complainant told appellant to stop but did not push appellant away. After some time, appellant asked the complainant to turn around. When the complainant refused, appellant forced the complainant to bend over the couch. Appellant then applied petroleum jelly to his finger and inserted his finger into the complainant's anus. Appellant reassured the complainant by telling him to "be a good boy" and "that's a good boy." Subsequently, appellant inserted his penis into the complainant's anus and "began to thrust." After this incident ended, the complainant put his clothes back on while the naked appellant fell asleep on the couch. The complainant laid on the floor. He did not attempt to leave because he was afraid that appellant "would try and hurt me" with the gun.

         The next morning, the complainant told appellant that his mother had called and he needed to go home. As he was riding toward his home, the complainant called his mother and told her that he had been sexually assaulted. The complainant was very upset and asked his mother to call the police. When the complainant arrived home, the police were called and the complainant was taken to the hospital to have a sexual assault examination performed. The responding officer, Sergeant Cole, testified that, within a few minutes of listening to the complainant, he could tell that the complainant seemed a little slow, like he had suffered a head injury. The complainant told the sexual assault nurse examiner about the assault and stated that he was afraid during the assault because appellant had showed the complainant the gun.

         Appellant was indicted for two counts of sexual assault and one count of unlawful possession of a firearm by a felon. After hearing the evidence, the jury found appellant guilty on all three counts. The jury also found that appellant used or exhibited a deadly weapon during the commission of the sexual assaults. After hearing punishment evidence, the jury found that appellant had been previously convicted of two properly sequenced felony offenses and sentenced him to life imprisonment for all three offenses. It is from the resulting judgments that appellant appeals.

         By his appeal, appellant presents eight issues. By his first issue, appellant contends that the indictments in these cases were never presented to the trial court and, therefore, the trial court never acquired jurisdiction over his cases. Appellant's second issue presents the contention that equal protection is violated if the State is not required to verify presentment of State-prepared indictments while defendants are required to provide far more verification of defendant-prepared motions for new trial. By his third issue, appellant contends that the evidence is insufficient to support the jury's determination that appellant used or exhibited a deadly weapon during the commission of the offenses. By his fourth and fifth issues, appellant contends that the evidence is insufficient to establish that the complainant was unable to resist appellant's advances, physically or due to a mental disease or defect, and that appellant knew of such inability at the time of the sexual assaults. Appellant's sixth issue contends that the punishment charge erroneously indicated that appellant had been convicted of aggravated sexual assault, which caused appellant egregious harm. By his seventh issue, appellant contends that the judgments for the sexual assault convictions should be reformed to reflect that appellant was convicted of sexual assault rather than aggravated sexual assault. Finally, by his eighth issue, appellant contends that the evidence is insufficient to establish that appellant used or exhibited a deadly weapon regarding the unlawful possession of a firearm by a felon conviction.

         Indictment

         By his first issue, appellant contends that the record reflects that the indictment in this case was merely filed rather than presented to the trial court. As such, he contends that jurisdiction was never vested in the trial court.

         When an indictment is presented to a court by a grand jury, it vests the court with jurisdiction over the cause. Tex. Const. art. V, § 12(b). However, if the defendant fails to object to a defect, error, or irregularity of form or substance in the indictment before the commencement of trial, he waives the right to complain about that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.