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.

Loge v. State

Court of Appeals of Texas, Fourteenth District

May 22, 2018

DARRELL WAYNE LOGE, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause No. 1407028

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

          OPINION

          WILLIAM J. BOYCE, JUSTICE

         Appellant Darrell Wayne Loge appeals his conviction for attempted sexual assault. Appellant contends on appeal that (1) the evidence is legally insufficient to support his conviction; (2) the trial court committed fundamental error during voir dire by making allegedly improper comments to the venire panel; and (3) the trial court erred by failing to include an extraneous offense instruction in the punishment phase jury charge. We affirm.

         Background

         Appellant was indicted for attempted sexual assault. He was released from custody on a $30, 000 bond. A jury trial was held from September 23, 2016, until September 27, 2016. Appellant was present during the voir dire portion of trial. He failed to appear for any other part of trial, including the guilt-innocence and punishment phases of trial.

         The complainant testified at trial that she, her husband, and their two children were on their way to purchase a vehicle on September 3, 2013, when they stopped at a gas station so complainant could use the restroom. Complainant's husband and children waited in the car while she went into the gas station's ladies' restroom. As complainant was washing her hands, she saw in the mirror that appellant came out of one of the stalls. She got scared and tried to leave the restroom, but appellant "grabbed [her] so hard" from behind that she could not move.

         Appellant locked the restroom door, grabbed her neck, choked her with one hand, and covered her mouth with his other hand. Appellant said something to complainant but she did not understand him because she does not understand or speak English. Appellant started choking her with both hands. Complainant testified that she was in "horrible pain, " could not breathe, and was "making some really ugly noises . . . sort of coughing" as she was trying to get air.

         Complainant testified that she tried to "do something with [her] hands" and also tried to kick backwards at appellant but she was unable to do so because appellant was "completely on top of [her] and [she] couldn't do anything to him." Complainant started losing her strength. As her body went limp, appellant moved her toward his genitals. She saw that appellant "had his pants down because [she] saw his leg." Complainant testified that this was her "opportunity to harm him" so she scratched him and "tried to get up toward him to fight" him. In the process, she touched something wet she believed was appellant's penis, but she could not see it because appellant was wearing a long shirt.

         Complainant got up from the floor to fight with appellant. During the fight, complainant "ended up in front of him" and was able to see part of appellant's face and his right eye. In her attempt to fight appellant so he would let go of her, complainant put her hand in appellant's mouth. Appellant bit complainant's hand, leaving a wound. Complainant testified that they continued to struggle and appellant turned her back around and they fell on the floor. Complainant continued to struggle with appellant on the restroom floor. Appellant covered complainant's mouth and "tried to pull down" her pants but she kept moving and appellant was unable to take off her pants. She then screamed as loudly as she could six or seven times "Help me" until she no longer felt appellant and "[h]e stood up from [her]."

         When appellant got up, he went back into the stall. Complainant got up from the floor, unlocked the restroom door, left the restroom, and walked down the hallway back into the gas station. Complainant screamed for help and approached the cashier. Complainant told the cashier to call the police because a man had tried to kill and rape her in the ladies' restroom. Complainant then saw appellant coming out of the restroom hallway. "He had a cap on and he was coming out, but looking a different direction." Complainant screamed, "Take him" as appellant was walking towards the gas station exit, but no one stopped him.

         After appellant exited the gas station, complainant went outside to her husband and told her husband what had happened. Complainant's husband called the police. When the police arrived, they interviewed complainant and took pictures of the red marks on her neck and the teeth marks on her hand.

         The gas station cashier, Elizabeth Martinez, testified at trial. She stated that she was ringing up a customer on September 3, 2013, when complainant "just came screaming, holding her neck" from the restroom. Complainant spoke to Martinez in Spanish telling her that a "guy tried to choke her and tried to rape her in the restroom." Complainant also said "Ayudame" which Martinez testified meant "Help me." Martinez testified that complainant pointed to appellant as the man who attacked her in the restroom and tried to rape her. When complainant pointed to appellant saying, "it's him, " appellant was right behind her "all red." Appellant was "fixing his shirt and fixing his pants;" he looked scared. He was nervous and said, "She's crazy. She's crazy. She don't know what she's talking about. . . . Don't listen to her." He then walked out of the gas station and went to his truck.

         Martinez testified that she recognized appellant as the man complainant pointed out as her attacker on the gas station surveillance video; he was wearing a blue shirt, khaki pants, and a hat. Martinez identified appellant as the man complainant claimed was her attacker on still frames taken from surveillance footage shown by the State in court. Martinez also identified appellant as the man complainant claimed was her attacker on another photo the State showed Martinez in court. Martinez confirmed that complainant had visible red marks on her neck and was hysterical and crying.

         Houston Police Officer Sol Thomas, who was assigned to investigate the case, testified at trial. She stated that she obtained surveillance footage from the gas station. Officer Thomas reviewed the surveillance footage, spoke to complainant and other witnesses in the case, and conducted further investigation which enabled her to locate appellant. She showed complainant a photo array consisting of six photos. Complainant identified appellant and another male in the array as her attacker. Officer Thomas then obtained a warrant for appellant's arrest, who was in Harlingen, Texas at the time. Officer Thomas identified appellant in court on a still frame photo taken from surveillance footage. Officer Thomas also identified appellant based on his booking photo.

         Harlingen Police Department Investigator Manuel Tovar testified at trial that he assisted in appellant's arrest at the Harlingen Police Department. Investigator Tovar identified appellant on a photo the State showed him at trial as the person he booked in Harlingen. Investigator Tovar testified that he let appellant make a call on appellant's cell phone after appellant could not reach anyone using the landline at the police station. Investigator Tovar was present when appellant first called his sister-in-law Stacy, who did not answer appellant's calls. Appellant then called his pastor, and Investigator Tovar heard appellant say, "Pastor, do you remember what we were talking about? They're arresting me now for that."

         While appellant was talking to his pastor, Stacy called appellant back on his cell phone. Appellant placed the pastor on hold and spoke to Stacy. According to Investigator Tovar, appellant said, "Stacy, I need you to bail me out. . . . Look, if you can bail me out, I'll pay you later. . . . Look, it was just a misunderstanding. It was an accident. It was a misunderstanding. I was in - I made a mistake by going into the women's restroom. . . . I was in the women's restroom and I tried to get out, but this woman was holding me by my leg and she wouldn't let me go."

         The jury found appellant guilty of attempted sexual assault and assessed appellant's punishment at 10 years' confinement and a $10, 000 fine. On October 28, 2016, the trial court pronounced the sentence in open court in appellant's presence. Appellant filed a timely notice of appeal.

         Analysis

         I. Sufficiency of the Evidence

         We begin by addressing appellant's legal sufficiency challenge in his third issue. Appellant argues that the evidence is legally insufficient to support his conviction for attempted sexual assault because (1) complainant never testified that appellant "'put' her on the ground as alleged in the indictment;" (2) "the evidence is insufficient to support that Appellant committed acts of more than mere preparation that tended to but failed to effect the commission of sexual assault, " and had the specific intent to commit a sexual assault; and (3) various statements appellant made after the alleged attempted sexual assault do not support the jury's verdict.

         When reviewing the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017). The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

         In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd). The jury may credit the testimony of the witnesses it chooses to believe, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Id.

         "A criminal conviction may be based upon circumstantial evidence." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence and may alone be sufficient to establish guilt. Id.; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). It is not necessary that every fact and circumstance point directly and independently to the defendant's guilt; it is enough that the combined and cumulative force of all the incriminating circumstances supports the jury's conclusion. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

         The jury may not draw conclusions based on speculation, but may draw multiple reasonable inferences from facts as long as each is supported by the evidence presented at trial. Id. at 15. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).

         Appellant was charged with attempted sexual assault, and the indictment alleged that appellant on or about September 3, 2013 "did then and there . . . with the specific intent to commit the offense of SEXUAL ASSAULT of [COMPLAINANT] . . . do an act, to-wit: GRABBING THE COMPLAINANT AND PUTTING HER ON THE GROUND, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended."

         A person commits sexual assault if he intentionally or knowingly causes (1) the penetration of the anus or sexual organ of another person by any means, without that person's consent; (B) the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or (3) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. See Tex. Penal Code Ann. § 22.011(a)(1) (Vernon Supp. 2017). A person commits the offense of attempted sexual assault if, with the specific intent to commit sexual assault, he commits an act amounting to more than mere preparation that tends, but fails, to effect the commission of sexual assault. See id. § 15.01(a) (Vernon 2011).

         Appellant contends that the evidence is legally insufficient to support his conviction because complainant never testified that appellant "'put' her on the ground as alleged in the indictment." Appellant contends that complainant only testified that she and appellant "fell" to the ground during their struggle but that the words "put" and "fell" have different meanings and complainant's testimony thus cannot support the jury's verdict. According to appellant, the word "put" indicates that a person intended to place something in a certain place or move something in a specified direction, and "'fall' means to descend freely by the force of gravity."

         We reject appellant's contention because the complainant's testimony reasonably supports the jury's determination that appellant committed the acts alleged in the indictment. Complainant testified that she was washing her hands when appellant exited one of the restroom stalls, grabbed her from behind, choked her with one hand, and covered her mouth with his other hand. Appellant then choked her and squeezed her throat with both hands. Complainant testified that she tried to defend herself by kicking appellant and doing "something with [her] hands" but appellant was "completely on top of [her] and [she] couldn't do anything to him."

         Complainant testified that, when appellant was "choking me like this and I tried to fight and I moved my feet and I didn't feel anything, I felt that I lost my strength, that's when he put me down by his parts." She also stated that, when her body went limp and her "strength went away, " appellant "took [her] towards his private parts. And I saw that he had his pants down because I saw his leg, he had a long shirt on. And that was my opportunity to harm him so I saw his leg and I scratched him and I tried to get up toward him to fight." Complainant got up to fight off appellant. She testified that they continued to struggle and appellant turned her back around and they fell on the floor.

         We conclude that, based on complainant's testimony viewed in the light most favorable to the verdict, the jury reasonably could have determined that appellant grabbed complainant and then pushed or "put" her down on the ground as was alleged in the indictment.[1]

         Next, we address appellant's contention that "the evidence is insufficient to support that Appellant committed acts of more than mere preparation that tended to but failed to effect the commission of sexual assault, " and that appellant had the specific intent to commit a sexual assault.

         To be guilty of an attempted offense, the defendant need not have accomplished every act short of actual commission. Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981). Further, "[t]he element 'with specific intent to commit an offense' has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result." Nava v. State, 415 S.W.3d 289, 299 n.22 (Tex. Crim. App. 2013) (quoting Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g)). "'[P]roof of a culpable mental state generally relies on circumstantial evidence.'" Kelley v. State, 429 S.W.3d 865, 872 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (quoting Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978)); Varnes v. State, 63 S.W.3d 824, 833 (Tex. App.-Houston [14th Dist.] 2001, no pet.). Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of a defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

         Appellant argues that "there is no direct evidence that [he] attempted to sexual[ly] assault" complainant because (1) she never testified that he attempted to penetrate or contact her sexual organ, anus, or mouth; (2) his penis was never exposed; (3) complainant "did not observe any items such as a condom that would indicate his intent to sexual[ly] assault her;" (4) "no words were said by Appellant that indicated his intent to sexually assault her;" (5) when complainant allegedly was fighting off appellant and touched something wet she believed was his penis, "this was done at her direction, not at his;" (6) complainant "initially believed" appellant was there to rob her; (7) appellant did not "remove her pants, rip them, unbutton them, unzip them, or anything else that indicates he was actually trying to remove them;" (8) complainant's "testimony described a physical altercation, from which she sustained injuries, " and not an attempted sexual assault when appellant "never touched her breasts, vaginal area, buttocks, or anus" during the ...


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.