Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 181st District Court Randall County, Texas
Trial Court No. 26, 586-B, Counts I - III; Honorable John B.
QUINN, C.J., and PIRTLE and PARKER, JJ.
C. Parker, Justice
Toby Jay Mayes, appeals his convictions for two counts of
sexual assault and one count of unlawful possession of a
firearm by a felon. Each of the offenses was enhanced by proof
of two prior felony convictions. 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.
and Procedural Background
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
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
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."
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.
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.
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.
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.
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.
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.
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 ...