Appeal from the 263rd District Court Harris County, Texas
Trial Court Cause No. 1407028
consists of Chief Justice Frost and Justices Boyce and
WILLIAM J. BOYCE, JUSTICE
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.
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.
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.
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
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.
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]."
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.
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.
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.
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.
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.
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."
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."
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
Sufficiency of the Evidence
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.
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).
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.
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).
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.
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
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).
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."
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."
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.
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.
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.
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).
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 ...