          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00315-CR




                                  Christopher Radon Rolig, Appellant

                                                       v.

                                      The State of Texas, Appe llee




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
           NO. 9014158, HONORABLE CHARLES F. CAMPBELL JR., JUDGE PRESIDING




                                MEMORANDUM OPINION


                 A jury found appellant Christopher Radon Rolig guilty of sexual assault and theft. Tex. Pen.

Code Ann. '' 22.011, 31.03 (West 2003). The jury assessed punishment for the sexual assault at

imprisonment for five years, while the court assessed punishment for the theft at imprisonment for two years.

Imposition of sentence was suspended and Rolig was placed on community supervision. He now urges

that the evidence is factually insufficient to sustain the convictions and that the court erred by overruling his

motion for new trial. We will overrule these contentions and affirm the convictions.
                                             State=s Evidence

                 Jane Smith testified that she and her friend Linda Freitag went to an Austin restaurant on the

night of September 4, 1999.1 They did not eat at the restaurant. Instead, they drank and danced with a

group of people they met there. When the restaurant closed, Smith, Freitag, and the others decided to go

to Polly Esther=s, a club in the downtown warehouse district. Freitag, who was driving, dropped Smith off

in front of the club, then left to find a parking place. It was agreed that Freitag and the others would rejoin

Smith in Polly Esther=s.

                 Smith testified that she entered Polly Esther=s and ordered a drink in the downstairs dance

area. The club was crowded, and she began to dance with other patrons. She continued to drink and

became intoxicated to the extent that she began Ablacking out.@ At some point, Rolig approached Smith,

but she rebuffed him. Later, not having seen Freitag or the others in her party, Smith decided to leave Polly

Esther=s and go to a nearby restaurant where she believed they might be. Before Smith reached the door of

the club, Rolig walked up to her, told her she was drunk, grabbed her wallet from her hand, and walked

away. Smith pursued Rolig across the crowded dance floor, demanding that he return her wallet. Rolig left

the club by a side entrance and walked across the street to a parking lot, still followed by Smith. Smith told

Rolig that her friends were waiting for her and she wanted her wallet. Rolig told Smith that her friends had




   1
     AJane Smith@ is the pseudonym used in the indictment to identify the complaining witness. See Tex.
Code Crim. Proc. Ann. art. 57.02 (West Supp. 2003).




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left, that she was too drunk, and that he would take her home. Rolig took Smith by the elbow and began to

walk her down the street, ostensibly to his car.

                Rolig lived in a downtown apartment complex several blocks from Polly Esther=s. Smith=s

next memory was of being in the courtyard of this complex. Rolig took Smith to his apartment. Her

memory of what happened there was fragmentary. She remembered encountering a male friend of Rolig,

who had two women with him. Although it crossed her mind to say something to them, she decided not to

because the man was Rolig=s friend. When Smith and Rolig were alone in the apartment, he began to kiss

and fondle her. Somehow, they ended up in the bedroom. Rolig pulled Smith=s dress above her head,

touched her breasts, and penetrated her vagina with his fingers. He began to lick her genitals. She kicked

and screamed. Rolig then forced his penis into Smith=s mouth.

                Smith became nauseated and Rolig took her to the bathroom, where she vomited. After

Smith vomited, Rolig left her alone in the bedroom. Smith used the telephone to call Freitag=s number and

leave a message. In the message, Smith told Freitag that a man had taken her wallet and that she was in his

apartment. She did not say that she had been abducted or assaulted. Smith asked Freitag to use her caller

ID to find where Smith was. Smith next remembered sitting on the couch in Rolig=s living room and

speaking to a man who was Rolig=s friend. She told the man she had been sick, but did not tell him that she

had been sexually assaulted by Rolig.

                The telephone rang several times. At first, Rolig picked up the receiver and immediately

hung up. Finally, he answered and Smith heard him tell the caller, AShe=s not here. You have the wrong

number.@ Smith testified that she thought then that she was going to die. She told Rolig that if he would


                                                    3
take her to her friend=s house to get her purse and keys, she would have sex with him. Rolig agreed to this

and told Smith to call her friend and tell her that she was safe. With Rolig watching her, Smith called Freitag

and told her that Aeverything was okay.@ Smith and Rolig then got into his car and, following her directions,

he drove her to Freitag=s house. Smith told Rolig she would go inside to get her purse, but first he must

return her wallet. After recovering her wallet and driver=s license, Smith ran into Freitag=s house.

                 Smith testified that she had been taking the drug Prozac for many years for depression.

Doctors had warned her not to drink alcohol while taking the drug. She claimed that she was familiar with

the effect of the drug and denied ever suffering from delusions. She acknowledged that in her original report

to the police, she said that she had been Aforced into a car and almost raped.@

                 Linda Freitag testified that when she and her companions entered Polly Esther=s, they went

to the upstairs balcony area. Freitag could see Smith on the dance floor below, but the club was crowded

and noisy, and she could not get Smith=s attention. Later, when Freitag was ready to leave the club, Smith

had disappeared. Concerned, Freitag attempted to find Smith, even having her paged. After a futile search

for Smith, Freitag drove home. There, she discovered Smith=s telephone message. She repeatedly called

the number shown on her caller ID. Someone would lift the receiver, but hang up without speaking. On

about the sixth call, a man answered and Freitag asked to speak with Smith. The man told her she had the

wrong number. Freitag then called the police to report what had happened. After about thirty minutes,

Smith called Freitag and told her that Ahe@ was going to bring her to Freitag=s house. She described Smith=s

manner of speaking as Aunusual.@ Freitag did not see the person who drove Smith to her house. Smith told

her what had happened to her, and Freitag convinced her to call the police.


                                                      4
                Amy Murphy and Tammy Ellis were residents of San Antonio who spent the 1999 Labor

Day weekend in Austin. On the night of September 4, they went to Polly Esther=s where they met Rolig and

his friend, Stephen St. James. They did not spend much time with Rolig, but danced for at least an hour

with St. James. About 2:00 a.m., they left Polly Esther=s with St. James and went to a pizza restaurant.

After eating, the women accepted St. James=s offer to drive them to the motel where they were staying. As

it happened, St. James=s car was parked at Rolig=s apartment complex. They went to Rolig=s apartment,

where St. James used the bathroom and got his keys. The two women stood inside the doorway. A young

woman was sitting on the couch; Murphy described her as Aintoxicated or very out of it.@ Asked if she was

all right, the woman told Murphy and Ellis that she was, but that she had been sick. Murphy asked Rolig to

let the woman use his telephone, and he did so. Murphy, Ellis, and St. James were in Rolig=s apartment for

only a few minutes.

                Austin Police Officer Paula Belville took a videotaped statement from Rolig, a transcript of

which was introduced in evidence. According to Rolig=s account, his encounter with Smith on the night in

question began when she approached him at Polly Esther=s. They went outside to talk, and she agreed to

go to his apartment. There, they sat on the couch but Smith became ill. Rolig took her to the bathroom,

where she vomited. After they returned to the couch, St. James, Murphy, and Ellis arrived, then soon left.

Rolig said he went outside to open the security gate for St. James. When he returned to his apartment, he

and Smith went to the bedroom, sat on the edge of his bed, and began to kiss. She offered no resistence as

he removed her clothing. When both were naked, Rolig=s telephone began to ring. Smith told him that the

caller was probably her friend. Rolig admitted telling the caller that Smith was not there. When the phone


                                                    5
rang for the third time, Smith answered and told her friend that everything was fine and not to worry. She

returned to Rolig=s bed and he briefly performed cunnilingus. Smith then told Rolig that she wanted to go

home.

                In his statement, Rolig denied penetrating Smith with his fingers or forcing her to fellate him.

He also denied taking Smith=s wallet, but acknowledged having her driver=s license at some point during the

evening.


                                            Defense Evidence

                Stephen St. James testified that he went to Polly Esther=s with Rolig on the night of

September 4. There he met and befriended Murphy and Ellis. According to St. James, when he and the

two women went to Rolig=s apartment complex, Rolig had to leave his apartment to open the security gate

both when they arrived and when they departed. He heard the woman sitting on the couch say she had

been sick but was feeling better. He said the woman did not appear to be injured, upset, or intoxicated.

                 Dr. Richard Coons, a psychiatrist, testified that he had examined Smith=s medical records

but had not spoken to her. He said her records indicated that she had been diagnosed with depression, an

Aalcohol issue,@ and cannabis dependence, and that she had been prescribed Prozac. The doctor testified

that alcohol, depression, and Prozac can each have an adverse affect on memory. He added that the use of

Prozac can result in the inability to distinguish dreams from reality, and cause mood swings, paranoia, and

sexual promiscuity. (Later, during cross-examination, Coons acknowledged that Prozac had a list of side

effects Aas long as your leg,@ that most of these side effects were experienced by only a small percentage of

persons taking the drug, and that depending on the person, Prozac could either increase or decrease the

                                                      6
libido.) Coons said that Smith=s records also reflected a history of Abad relationships, bad experiences@

with others. He testified that such experiences can affect how a person perceives and remembers events.

                 Coons also discussed what he called Aconfabulation.@ According to the doctor, if a person

experiences blackouts or memory loss as a result of intoxication, she may confabulate or Afill in the gaps in a

sort of faulty memory.@ In response to a hypothetical question based on the facts of this case, Coons

testified that in his opinion, the hypothetical woman might believe that she had been sexually assaulted when

in fact she had not.


                                             Factual Sufficiency

                 The indictment alleged three counts of sexual assault: penetration of Smith=s sexual organ by

Rolig=s finger, penetration of her mouth by his penis, and contact of her sexual organ by his mouth. Id. '

22.011(a)(1)(A), (B), (C). A fourth count alleged that Rolig stole Smith=s wallet and credit card from her

person. Id. ' 31.03(a), (e)(4)(B). The jury acquitted Rolig of the first two counts of sexual assault, but

found him guilty of the third sexual assault count and of theft. He does not challenge the legal sufficiency of

the evidence, but urges that the evidence is factually insufficient to sustain the guilty verdicts.

                 A factual sufficiency review asks whether a neutral review of all the evidence, both for and

against the finding of guilt, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the jury=s determination or that the proof of guilt, although adequate if taken alone, is greatly

outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A

verdict may be set aside for factual insufficiency only if a finding of guilt beyond a reasonable doubt is clearly




                                                        7
wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State,

823 S.W.2d 375, 381 (Tex. App.CAustin 1992, pet. ref'd, untimely filed).

                  Rolig makes the following arguments in support of his contention that the evidence in this

case is factually insufficient:


         $ Smith was, by her own admission, intoxicated to the point that she was experiencing
         blackouts. Her ability to perceive and remember events was clearly impaired.

         $ Smith=s perceptions were also distorted by her history of depression and bad
         relationships.

         $ Smith=s trial testimony and her statements to the police contained inconsistencies that
         reflect her impaired memory and suggest that she was engaged in the confabulation
         described by Dr. Coons.

         $ Smith made no outcry to Murphy and Ellis while they were in Rolig=s apartment. She
         told them she had been ill, but she did not tell them either that she had been abducted or
         sexually assaulted. She did not tell them that her wallet had been taken. Murphy
         persuaded Rolig to let Smith use his telephone, showing that there was someone in the
         apartment willing to help her if asked.

         $ Smith made no outcry at Polly Esther=s when Rolig allegedly took her wallet, even
         though the club was crowded with people.

         $ There was no physical evidence of an assault.

         $ In her telephoned message to Freitag, which was introduced in evidence, Smith said that
         Rolig would not return her wallet, but did not say that he had abducted her. She did not
         say that she had been sexually assaulted.

         $ Although it was undisputed that Rolig had Smith=s driver=s license at Polly Esther=s, Aif he
         did not intend to use it to lure her into his apartment, so that he could assault her, he
         necessarily lacked the requisite intent to deprive her of its use. In other words, if the
         evidence is factually insufficient as to the sexual assault count, it is insufficient to support the
         theft charge, too.@


                                                          8
        $ Although Rolig admitted engaging in cunnilingus, no rational trier of fact could believe that
        this act was not consensual after finding him not guilty of the other two counts of sexual
        assault.


                 When reviewing the factual sufficiency of the evidence, we may not substantially intrude

upon the jury=s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23

S.W.3d at 7 (citing Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996)). Unless the available

record clearly reveals a different result is appropriate, an appellate court must defer to the jury=s

determination concerning the weight to give contradictory testimonial evidence. Id. at 9. A decision is not

manifestly unjust simply because the fact-finder resolved conflicting views of the evidence in the State=s

favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.CAustin 1999, pet. ref=d).

                 The evidence in this cause supports a number of alternative interpretations, some of them

innocent. Nevertheless, the proof of guilt is not so obviously weak or so greatly outweighed by contrary

proof as to compel the conclusion that it was manifestly unjust for the jury to find that Rolig stole Smith=s

wallet and driver=s license and that he thereafter forcibly contacted her sexual organ with his mouth. The

jury=s failure to find Rolig guilty of the first two counts of sexual assault does not alter this conclusion. As

trier of fact, the jury was free to believe Rolig=s claim that he engaged in only the one sex act while at the

same time believing Smith=s testimony that she was forced against her will to engage in that act.

                 Point of error one is overruled.




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                                           Motion for New Trial

                 Rolig filed a motion for new trial alleging that the jury received other evidence after retiring

to deliberate. See Tex. R. App. P. 21.3(f). The motion was supported by the affidavit of a defense

investigator who interviewed juror Alice Cashman after the trial. She told him that during deliberations she

told the other jurors that she had taken Prozac and that in her experience the drug Alowered a person=s

sexual libido.@ At the hearing on the motion, Cashman testified that she told the other jurors Athat I had

been on Prozac and that it lowered my sexual libido.@ She said that she made this remark after another

juror mentioned that he had been on Prozac for a month and had noticed that it decreased his sexual desire.

Cashman did not remember if the foreman or any other member of the jury cautioned against discussing this

subject. Cashman testified that her experience with Prozac did not become Aa big topic of conversation,@

and it did not affect her verdict.2


   2
       The State objected that the affidavit and Cashman=s testimony were inadmissible under
Texas Rule of Evidence 606(b), which provides that a juror may not testify as to Aany matter or
statement occurring during the jury=s deliberations . . . as influencing any juror=s assent to or dissent
from the verdict.@ The rule also proscribes the admission of a juror=s affidavit or statement for such a
purpose. Tex. R. Evid. 606(b). The rule does permit a juror to testify whether Aany outside influence
was improperly brought to bear upon any juror.@ Id. The court overruled the State=s objection on the
ground that, at least arguably, Cashman=s testimony concerned an Aoutside influence.@ The State did
not file a cross-appeal challenging this ruling. See Tex. Code Crim. Proc. Ann. art. 44.01(c) (West




                                                      10
Supp. 2003). We express no opinion as to whether the testimony adduced at the new trial hearing
was admissible under rule 606(b).


                                              11
                The jury foreman also testified. He said that after Cashman and the other juror made their

remarks, Awe quickly, as a group decided, hey, this may be out of bounds. So it was my recollection that

we then C I put a question together and handed it to the bailiff and it came back that we were not allowed

to talk about.@3 He testified that there was no further discussion of jurors= personal experiences with

Prozac. He also testified that the jurors= comments regarding the effects of Prozac did not influence his

verdict.

                At the conclusion of the hearing, the district court stated that Ait=s pretty clear that some

evidence got before the jury that shouldn=t have got before the jury.@4 Nevertheless, the court overruled the

motion for new trial, citing the jurors= testimony that they were not affected by the comments regarding the

effects of Prozac and the foreman=s testimony that the jury as a whole determined that the subject was Aout


   3
      Among several notes from the jury to the judge was one asking, AIs the jury permitted to give
past examples of experiences that relate to the case? For example if a juror had some experience with
people who have been raped, can they elaborate on and compare and contrast their experiences with
the case?@ The judge answered, ANo.@
   4
      AOther evidence@ means something not already disclosed to the jury at trial. 43A George E. Dix and
Robert O. Dawson, Texas Practice: Criminal Practice and Procedure ' 41.63 (2d ed. 2001). In light
of Dr. Coons=s testimony that Prozac could affect the libido by either increasing or decreasing the user=s
sexual desire, it is debatable whether the jurors= comments regarding their own experiences with the drug
were, in fact, Aother evidence.@




                                                     12
of bounds.@ We review the court=s ruling for an abuse of discretion. See Lewis v. State, 911 S.W.2d 1, 7

(Tex. Crim. App. 1995).

                 A new trial must be granted pursuant to rule 21.3(f) if other evidence detrimental to the

accused was received by the jury. Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981);

Carroll v. State, 990 S.W.2d 761, 762 (Tex. App.CAustin 1999, no pet.).5 A passing remark or mere

mention of a matter does not constitute Areceipt@ of other evidence. Stephenson v. State, 571 S.W.2d

174, 176 (Tex. Crim. App. 1978); Avalos v. State, 850 S.W.2d 781, 783 (Tex. App.CHouston [14th

Dist.] 1993, no pet.). How the jury responded to the interjection of other evidence is also important in

assessing whether it was Areceived@ by the jury. AIf the other evidence was met with an admonition that it is

improper for the jury to consider it and it was not further discussed, then that event will ordinarily not be

considered a sufficiently serious breach of propriety to require a new trial.@ 43A George E. Dix and Robert

O. Dawson, Texas Practice: Criminal Practice and Procedure ' 41.63 (2d ed. 2001) (footnote

omitted) (collecting cases). As the district court noted, the foreman testified that the jurors determined that

it was improper to consider their colleagues= experiences with Prozac and there was no further discussion of

the subject. Cashman did not remember this, but she did recall that the subject was not Aa big topic@ during

deliberations. On this record, we conclude that the district court did not abuse its discretion by determining

that the jury did not receive other evidence detrimental to Rolig. Point of error two is overruled.




   5
      Garza construed former code of criminal procedure article 40.03(7), which was substantially
identical to rule 21.3(f). See Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 3, ' 5, 1973 Tex.
Gen. Laws 1122, 1128 (Tex. Code Crim. Proc. Ann. art. 40.03(7), since repealed).


                                                     13
                 The district court signed two judgments of conviction, one for each count of the indictment

on which Rolig was convicted. The judgments are affirmed.




                                                  Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: May 8, 2003

Do Not Publish




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