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Davis v. State

Court of Appeals of Texas, Fifth District, Dallas

July 24, 2019


          On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F15-76601-L

          Before Justices Brown, Schenck, and Pedersen, III



         A jury found appellant Christopher Allen Davis guilty of sexual assault. The trial court assessed appellant's punishment, enhanced by a prior felony conviction, at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. In this Court, appellant contends the trial court erroneously admitted evidence of three extraneous offenses and that evidence of one of those offenses violated his constitutional right to confrontation. He also contends that the evidence is insufficient to support the jury's verdict. We affirm.


         Early in the morning of August 7, 2008, K.R. and her friend D.R. drove together to a house in Dallas where appellant lived with his roommate, Chris Norton, and Norton's girlfriend, H.L. Evidence established that people often went to the house to "hang out" and "get high." That morning, K.R., D.R., Norton, and appellant all smoked methamphetamine. All except appellant consumed a half-cap of gamma-hydroxybutyric acid (GHB), which apparently gives an enhanced but short high to its users. When the effects of the GHB were wearing off, appellant prepared and offered the women wine coolers. Shortly thereafter, K.R. found it almost impossible to walk, and she blacked out. She awoke later that morning, in her car, which had been abandoned and parked in a warehouse area. D.R. was unconscious in the back seat of the car. At trial K.R. described having only flashes of memory that involved both men having sex with her.

         When she was able, K.R. drove home, where she and D.R. smoked methamphetamine again. They were afraid to report the assaults because they had gone to appellant's house to get high, but K.R.'s roommate persuaded the women to go to the hospital. He drove them to nearby Doctors Hospital. There, hospital personnel told the women that they could not perform a sexual assault exam: the police would take them to Parkland Hospital where the exam could be performed. D.R. did not stay and wait for the police; K.R. did. Later that same day, D.R. took herself to Parkland for a sexual assault exam. The officers asked K.R. what had happened, and she told them. She also showed the officers a packet of information she had retrieved from My Space that showed the location of appellant's house and included pictures of Norton with different women, including one who was unconscious.

         Testimony and records establish that, at Parkland, sexual assault exams are performed in the Intermediate Care Center by a faculty member of UT Southwestern Medical School. The process can take four to six hours. K.R. met with a number of people: nurses took blood and urine samples; Victim Interaction Prevention Counselors met with her to assess her and to speak to her about resources. Then Dr. David Rahn performed the sexual assault exam. He explained that these exams begin with a history. He asks the patient for information about the assault to guide him in the treatment he will provide and in collecting evidence. The patient is examined "head to toe" for any injuries, including a vaginal exam for internal injuries. Swabs are taken for potential evidence; slides may also be prepared. Medication is offered to treat sexually transmitted diseases including HIV. The victim's clothes are taken and are submitted with the sealed sexual assault kit to the Southwestern Institute of Forensic Sciences (SWIFS), Dallas County's forensic laboratory service provider. K.R.'s exam lasted a number of hours, after which she went home.

         K.R. did not respond to calls from the Dallas Police to follow up on her report. Although she was sober at the time of trial, in 2008 she was still involved in the drug world. The case remained idle until a legislative grant to test rape kits led to hers being tested in 2015. After DNA in her kit produced a match to appellant, K.R. identified him from a photo lineup and also identified him at trial as the man who had assaulted her in 2008.

         The jury found appellant guilty of sexual assault. During the punishment phase of the trial, the State presented evidence of appellant's prior convictions for sexual assault, robbery, and burglary. The trial court imposed a life sentence. This appeal followed.


         I. Sufficiency of the Evidence

         In his first issue, appellant argues the evidence is insufficient to support the jury's finding that he committed sexual assault. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that when he had sex with K.R., it was without her consent.

         A person commits sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person by any means, without that person's consent. Tex. Penal Code Ann. § 22.011(a)(1)(A). The penal code defines "consent" as "assent in fact, whether express or apparent." Id. § 1.07(a)(11). The statute disjunctively lists eleven manners of proving that a sexual assault was without consent. Id. § 22.011(b). The trial court's charge included five of the eleven:

the actor compels the other person to submit or participate by the use of physical force or violence;
the actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat;
the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; or
the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge.

Id. § 22.011(b)(1)-(3), (5)-(6). The State has the burden to prove the sexual act at issue was not consensual. Moon v. State, 607 S.W.2d 569, 570 (Tex. Crim. App. 1980) ("Lack of consent to the sexual intercourse in a rape case is an essential element of the State's case.").

         We review appellant's sufficiency challenge by examining the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard applies equally to direct and circumstantial evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor; indeed, circumstantial evidence can be sufficient on its own to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We may not substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

         Appellant argues the State failed to carry its burden on the element of consent. He contends that the jury "speculated and guessed" about the consent issue. We disagree. At the outset, the jury heard K.R. testify that she did not consent to intercourse with appellant. Under the circumstances of this case, we could uphold appellant's conviction on that testimony alone. Tex. Code Crim. Proc. Ann. art. 38.07(a) (conviction under chapter 21 "supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred"). However, K.R.'s testimony was not uncorroborated.

         Justin Schwane, the toxicology lab supervisor at SWIFS, testified that K.R.'s urine sample taken at Parkland contained a high level of GHB. A test is deemed positive at a level of 10; K.R.'s sample was measured at 60, both when it was initially tested and when re-tested for confirmation. When questioned, Schwane testified that he would expect GHB to be gone from a subject's body after eight to ten hours, but he stated that the greater the dose of GHB, the longer the detection window.

         Dr. Stacey Hail, who is board certified in emergency room medicine and medical toxicology, testified that GHB is a well-known date rape drug. It acts very quickly, it causes amnesia, and it is difficult to detect in biological specimens. Accordingly, if the GHB was detected in urine twelve to sixteen hours after it was taken, it was probably a large dose. She testified that a person who tested at K.R.'s level would not have been capable of giving consent to sex. She stated that such a person would be unconscious during most of the encounter, could wake up momentarily, open her eyes, and see what was happening, but would be physically unable to resist. Hail's testimony comports with K.R.'s description of momentary, or flash, memories of appellant (and Norton) attacking her.

         As to the source of the large dose of GHB, Norton testified that-although he did not see appellant put GHB in the wine cooler he made for K.R.-he saw appellant put a straw in the drink and knew what appellant was doing: GHB is heavier than water and settles to the bottom of drinks, so sipping with a straw allows all the GHB to be consumed quickly. Norton agreed that appellant "could pretty much do whatever he wanted" to K.R. because he gave her that GHB.[1]

         Appellant argues that the State offered no evidence that he knew K.R. was unconscious, unable to resist, or unaware that he was having sex with her. What an actor knew or intended may be inferred from circumstantial evidence, including his acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury could have inferred from the testimony of these witnesses that appellant administered a large dose of GHB to K.R., without her knowledge, precisely so he could have sex with her when she could not resist. Norton testified that he saw K.R. "passed out" on the living room floor. He also testified that he and appellant had to carry K.R. to her car later that morning. K.R.'s unconscious status was apparent to Norton; the jury could certainly have inferred that it was apparent to appellant as well.

         The jury was able to observe these witnesses and to determine their credibility. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant intentionally impaired K.R.'s ability to control her conduct by administering a large dose of GHB to her without her knowledge, see Penal § 22.011(b)(5), and then-without her consent-had sex with her while he knew she was unconscious and physically unable to resist, see id. § 22.011(b)(3), and while he knew she was unaware the assault was occurring, see id. § 22.011(b)(4).

         We conclude the evidence is sufficient to support the jury's verdict.[2] We overrule appellant's first issue.

         II. Extraneous Offenses

         In his second issue, appellant contends that the trial court erred by admitting evidence of three extraneous offenses during the guilt-innocence portion of trial. The allegations involved were made by three women, each of whom asserted that appellant had sexually assaulted her in his home.

         A. The Offenses

         The State first offered evidence of statements made by D.R., who had accompanied K.R. to appellant's home the evening of the offense. D.R. had passed away before K.R.'s trial. But the trial court allowed the State to offer-through Dr. Rahn again-statements that D.R. had made during her forensic sexual assault examination.[3] Rahn reported that D.R. ...

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