                             NUMBER 13-12-00670-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

WILLIE MICHAEL MWACHANDE,                                                      Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 372nd District Court
                          of Tarrant County, Texas.


                          MEMORANDUM OPINION
                Before Justices Rodriguez, Garza, and Perkes
                   Memorandum Opinion by Justice Garza
       Appellant, Willie Michael Mwachande, was convicted of sexual assault, a

second-degree felony, and was sentenced to six years’ imprisonment. See TEX. PENAL

CODE ANN. § 22.011(a)(1), (f) (West Supp. 2011). On appeal,1 he contends that: (1) the


       1
           This appeal was transferred from the Second Court of Appeals pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West
trial court erred by allowing a juror to remain on the jury after he admitted to knowing

one of the witnesses; (2) the trial court erred by denying his motion for mistrial based on

the juror’s revelation; and (3) the evidence was insufficient to support his conviction.

We affirm.

                                             I. BACKGROUND

         Sarah Johnson2 testified that she met Mwachande at a bar in the summer of

2011.3 She knew him as “Willie” and did not know his last name. At the time Sarah met

Mwachande, he was with some friends, including a man named Luis. Sarah testified

that she and Luis had since been romantically involved, but she denied ever being

romantically interested in Mwachande or ever indicating such interest to Mwachande.

         On the evening of November 12, 2011, Sarah attended a party at the home of

her friend Cynthia in Fort Worth, Texas.                  At around midnight, Sarah, Cynthia, and

another friend left the party to go to a sports bar. Sarah testified that she did not drink

alcohol at Cynthia’s house, but that she had “a couple of gin and waters” at the sports

bar. Sarah testified that Cynthia and Mwachande were texting each other throughout

the evening and were planning to meet up.4 Cynthia asked Sarah if the group could

meet to hang out at the apartment Sarah shared with her roommate, Amy Price. Sarah

agreed.


2005).
         2
          “Sarah Johnson” is a pseudonym used in the trial court record to refer to the complainant. She
was addressed by her actual first name at trial. The trial court ordered her last name to be sealed, and it
is redacted from the trial record. We will use the pseudonym to protect the complainant’s privacy.
         3
           Sarah testified at trial, which commenced on September 19, 2012, that she is twenty-three
years old. However, we note that the trial court’s final judgment states, with reference to sex offender
registration requirements: “The age of the victim at the time of the offense was 24 Years.”
         4
             Sarah stated that Cynthia had previously been romantically involved with Mwachande.


                                                      2
       When Sarah and her friends arrived at the apartment, Mwachande was waiting at

the front gate.5 Sarah let him in through the gate, and the group entered the apartment.

At that point, according to Sarah, “they started hanging out. I went to the bathroom,

came out, and I was tired and I didn’t really feel like sitting with them. And so I decided

to go to sleep.” Sarah testified that, at about 2:40 or 3:00 a.m., she went into her

bedroom, shut the door, and went to sleep in the clothes she had been wearing. She

then testified as to the next thing she remembered:

       I woke up and I—I had my pants off and there was somebody in the room
       on top of me. And I didn’t know who was in there and I woke up and I was
       really confused. And he had my pants off and he—and he put his penis in
       me and he started going and I got really, like, freaked out. I didn’t know
       who was in there. And he said, “No, it’s okay. It’s just me, Willie.” And I
       was, like, “No, it’s not okay,” like, “you need to get off me right now.”

       And so, like, he kept trying to convince me, “No, it’s okay. It’s just me,
       Willie,” and I’m, like, “No, it’s not okay.” And so I kind of nudged him off a
       little bit and he had stopped and I was, like, freaking out. I didn’t really—
       you know, I was woken up by this. And I was yelling at him that he was
       sick and I was, like, you know, that’s not right. And he’s like—he just said
       it’s—he’s, like, “Can I at least just finish?”

Sarah confirmed that, after she had “nudged him off a little bit” and “said to stop,”

Mwachande stopped. She then noticed that her clothes were on the floor next to the

bed. She demanded that Mwachande leave the apartment. Sarah insisted that she did

not give consent to have sexual intercourse with Mwachande, and she was unaware of

what was happening until she woke up with Mwachande on top of her.

       The following afternoon, Sarah called police to report a sexual assault. She

underwent an examination by a sexual assault nurse examiner (“SANE”) on the evening

of November 13, 2011. Sarah indicated to the nurse that she had bathed and changed


       5
        Sarah stated that Mwachande had been to her apartment once before, when he visited with Luis
a few months earlier.

                                                 3
clothes since the alleged assault. The nurse found no injuries or trauma to Sarah’s

sexual organ and no semen was observed. The nurse testified that the examination

findings were consistent with sexual assault based on the history given by the patient,

but that the findings were also consistent with consensual intercourse. DNA analysis of

vaginal swabs taken during the examination showed the presence of sperm; however,

Mwachande was excluded as a possible source.6

       Cynthia testified that Sarah “drank one of my beers” at the party at Cynthia’s

home. She believed that Sarah “had one or two [drinks] at the bar” and “like one drink”

when the group returned to Sarah’s apartment. According to Cynthia, about twenty or

thirty minutes after the group arrived at the apartment, Sarah told everyone she was

going to bed and went to her bedroom. Cynthia then fell asleep on the living room

couch but was later awakened by Sarah yelling. Cynthia got up and looked around and

“saw the front door slamming”; she surmised that Sarah “had just kicked Willie out of the

apartment.” Cynthia testified that Sarah, who was crying and clearly upset, then told

Cynthia what happened.

       Detective Jeremy Spann of the Fort Worth Police Department met with Sarah on

November 18, 2011. Sarah did not know the last name of the person that assaulted

her; however, Detective Spann was able to identify the suspect as Mwachande after

inquiring at a place of business where he previously worked. The detective prepared a

photo lineup and presented it to Sarah. Sarah identified Mwachande as the assailant.

Detective Spann called Mwachande and asked to meet. Mwachande said he needed to

speak to his attorney first; five minutes later, he called the detective back and said that


       6
           The SANE nurse testified that Sarah reported having consensual sexual intercourse with a
different partner on November 11, 2011.

                                                4
he did not do anything wrong and that he wanted make a statement. He made an

appointment to meet with the detective on November 25 at 8:00 a.m., but Mwachande

did not show up and instead rescheduled for the next day at 9:00 a.m. Mwachande

arrived at the police station about ninety minutes late on November 26. He then gave a

recorded statement, which was entered into evidence and played for the jury at trial.

        As part of his investigation, Detective Spann also contacted Sarah’s roommate

Amy. Amy informed the detective that a man named Jed Irvine is friends with “Willie”

and might know his last name. The detective also had information that Jed spoke with

Mwachande shortly after the incident. Detective Spann testified at trial that Jed stated

he knew Mwachande for seven to eight years. Jed received a call from Mwachande at

5:00 a.m. on the day of the incident. According to the detective 7:

        Jed stated that Willie was trying to justify what occurred and that he
        wanted to give his side of the story. Willie told Jed he went to the
        bathroom and when he came out into the—when he came out, the victim
        [Sarah] was in the hallway.

        Willie told Jed that the victim grabbed Willie by his penis and [dragged]
        him into her room. Willie told Jed he and the victim had sex for about
        three minutes. Willie told Jed the victim fell asleep for about five minutes
        during sex. Willie told Jed the victim woke up and forgot she had been
        having sex with Willie and told him to get off. Willie stated that he left
        then. Willie did admit to Jed that he asked her if he could finish.

        In his recorded statement, Mwachande emphasized that everyone had been

drinking heavily that night. At one point, he went to the bathroom and when he came

out, Sarah was standing in front of him in the hallway, so he “made a move” on her .

They then both went into Sarah’s bedroom and started have sex, but within three

minutes, Sarah asked him to stop. He later revised his story, stating that Sarah was


        7
         Detective Spann gave this testimony while reading from his police report to refresh his memory.
Neither party objected to the testimony as hearsay or on any other grounds.

                                                   5
not, in fact, standing outside the bathroom, but rather

        she was in bed and I got in there. That’s—that’s what happened. . . . I
        came out of the bathroom and I went into her room. She was not standing
        there. I got in the bed and I took her jeans off and started messing around
        with her and she told me to stop and I did.

When Detective Spann asked Mwachande how he “mess[ed] with her,” Mwachande

said:       “Insertion.   I stuck my penis in her vagina . . . while she was sleeping.”8

Mwachande did not mention in his recorded statement —as he did to Jed, according to

the Detective Spann’s testimony—that Sarah had fallen asleep “for about five minutes”

or that she “grabbed [him] by his penis and [dragged] him into her room.”

        After the State presented its case, the defense closed without presenting

evidence. The jury then convicted Mwachande of sexual assault and sentenced him to

six years’ imprisonment. This appeal followed.

                                        II. DISCUSSION

A.      Motion to Strike Juror and Motion for Mistrial

        By his first issue on appeal, Mwachande argues that the trial court “committed

constitutional error” by allowing a juror, who had admitted to knowing a witness, to

remain on the jury. By his second issue, Mwachande contends that the trial court erred

in denying his motion for mistrial based on the juror’s admission.

        At the beginning of trial, just after Sarah took the stand as the first witness to be

called by the State, Juror No. 20 stood up and asked to “have a word with the judge.”

The trial court excused Sarah and invited the juror and both attorneys to have a

discussion at the bench. The juror—who did not raise his hand when the prosecutor

previously asked at voir dire if any veniremember knew any of the people listed as

        8
            Detective Spann asked Mwachande why he changed his story. Mwachande replied: “Because
I’m a . . . human being that lies sometimes.”

                                               6
witnesses—informed the trial court that he knows Amy Price and Sarah’s brother. The

juror stated that, at least four years ago, he used to work with Amy as a server at a

restaurant. He worked with her for about three or four years. He was friends with her

but they were never romantically involved. He last saw her about six months ago, but

before that, it had been “several, several years” since he saw her. Juror No. 20 also

stated he recognized Sarah’s brother, who was sitting in the courtroom, but that he

doesn’t know him “pretty much at all.” The trial court asked Juror No. 20 whether there

was anything about his knowledge of Amy or Sarah’s brother that would make him

unable to listen to the witnesses and judge them “based on what happens in court” and

not based on the prior relationship. Juror No. 20 assured the trial court that he would be

neutral. Defense counsel asked that the juror be struck and moved for a mistrial; the

trial court denied both motions.

       1.     Standard of Review and Applicable Law

       Article I, section 10 of the Texas Constitution guarantees the right to counsel,

which includes the right of counsel to question members of the venire panel in order to

intelligently exercise peremptory challenges.” Franklin v. State, 138 S.W.3d 351, 357

(Tex. Crim. App. 2004) (Franklin II) (citing TEX. CONST. art. I, § 10 (“In all criminal

prosecutions the accused shall have a speedy public trial by an impartial jury.”)).

“Counsel for the State and defendant have the right to question the jury [at voir dire] to

expose any interest or partiality in order to use peremptory strikes intelligently.” Franklin

v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000) (Franklin I)). “Hence, when a juror

withholds material information, the parties’ use of challenges and peremptory strikes is

hampered.” Id. at 477–78. Material information is that which shows a juror’s bias or



                                             7
prejudice. See Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim. App.1986) (op. on

reh’g). Examples of withheld information found to be material include: in a sexual

assault of a child case, the fact that a juror was the victim’s Girl Scout leader, see

Franklin I, 12 S.W.3d at 478–79; in an indecency with a child case, the fact that a juror

had witnessed the sexual assault of his daughter and had testified against the

defendant in the trial, see Salazar v. State, 562 S.W.2d 480, 482–83 (Tex. Crim. App.

1978); and in a murder case, the fact that a juror was well-acquainted with the victim's

family, see Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. [Panel Op.]

1978).

         “When a partial, biased, or prejudiced juror is selected without fault or lack of

diligence on the part of defense counsel, who has acted in good faith upon the answers

given to him on voir dire not knowing them to be inaccurate, good ground exists for a

new trial.” Franklin I, 12 S.W.3d at 478 (quoting Von January, 576 S.W.2d at 45). “It is

not necessary that the concealed information show actual bias; just that it has a

tendency to show bias.” Franklin II, 138 S.W.3d at 356.

         A trial judge’s ability to declare a mistrial based on manifest necessity is limited to

“very extraordinary and striking circumstances.” Hill, 90 S.W.3d at 313 (citing United

States v. Jorn, 400 U.S. 470, 480 (1971)).             Manifest necessity exists when the

circumstances render it impossible to arrive at a fair verdict, when it is impossible to

continue with trial, or when the verdict would be automatically reversed on appeal

because of trial error. Id. at 315.

         2      Analysis

         With respect to Amy—who was not with Sarah on the night of the offense—the



                                                8
juror’s prior relationship was minimal. He worked with her for a few years, several years

before trial, and he was never romantically involved with her. With respect to Sarah’s

brother—who was not a witness at trial—the juror apparently had no personal

relationship of any significance. He stated only that he knew him by sight. As to both

individuals, there was no information provided to the trial court indicating that the juror’s

prior knowledge would hinder his ability to perform his duties as a juror.9 The juror’s

revelations do not establish actual bias or prejudice or tend to show bias or prejudice.

See Franklin II, 138 S.W.3d at 356.               Accordingly, the withheld information was not

“material” so as to require Juror No. 20 to be struck or a mistrial to be declared. See

Decker, 717 S.W.2d at 907.10 We overrule Mwachande’s first and second issues.

B.      Evidentiary Sufficiency

        1.      Standard of Review and Applicable Law

        In reviewing the sufficiency of evidence supporting a conviction, we consider 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 crime beyond a reasonable

doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v.

        9
             Juror No. 20 assured the trial court that his prior relationship with Amy would not affect his
ability to listen to witnesses and evaluate the case “based on what happens in court.” However, “it is not
dispositive of the issue if the juror states [the withheld information] will not affect his verdict.” Brown v.
State, 183 S.W.3d 728, 737 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Franklin v. State, 138
S.W.3d 351, 355–56 (Tex. Crim. App. 2004) (Franklin II)). “The good faith of the juror is ‘largely irrelevant
when considering the materiality of information withheld.’” Id. (citing Franklin v. State, 12 S.W.3d 473,
478 (Tex. Crim. App. 2000) (Franklin I)).
        10
           Mwachande also contends by his second issue that, “[a]t the very least, [he] was denied the
opportunity to further develop Juror 20’s potential biases and prejudices.” See Franklin II, 138 S.W.3d at
358 (holding that “the fact that the judge would not allow Franklin to ask the juror additional questions at
trial compounded the situation since he could not then affirmatively get any evidence of bias on the
record”). However, the record reflects that Mwachande’s trial counsel did not ask the trial court for
permission to pose additional questions to the juror; nor does it appear that counsel was ever prohibited
from asking the juror any questions counsel saw fit to ask. Accordingly, nothing has been preserved for
review. See TEX. R. APP. P. 33.1.


                                                      9
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier

of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). When faced with

conflicting evidence, we presume that the trier of fact resolved any such conflict in favor

of the prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993).

       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). Here, a hypothetically correct jury charge would state that

Mwachande is guilty of the indicted offense if he intentionally or knowingly caused the

penetration of Sarah’s sexual organ by any means, without Sarah’s consent.             TEX.

PENAL CODE ANN. § 22.011(a)(1)(A). A person acts “intentionally” with respect to the

result of his conduct when it is his conscious objective or desire to cause the result. Id.

§ 6.03(a) (West 2011). A person acts “knowingly” with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result.           Id. §

6.03(b).

       A sexual assault is “without consent” if, among other things, “the other person

has not consented and the actor knows the other person is unconscious or physically

unable to resist” or if “the other person has not consented and the actor knows the other

person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(3), (b)(5).




                                            10
        2.      Analysis

        By his third issue on appeal, Mwachande argues that the evidence was legally

insufficient to support his conviction.          In particular, he contends that “[t]he alleged

injured party’s testimony is highly suspect due to her level of intoxication.” He notes

that, “[b]y the alleged injured party’s own admission, she consumed several alcoholic

beverages during the course of the evening” in question. He notes also that, according

to Detective Spann, Jed Irvine stated that Mwachande told him that Sarah “grabbed

Willie by his penis and [dragged] him into her room.” Finally, he points out that the

SANE nurse testified that the findings of her examination were consistent with

consensual sexual intercourse.

        This issue is meritless. The SANE nurse testified that her examination results

were consistent with both sexual assault and consensual sex. Evidence showed that

Sarah had consumed alcohol on the evening in question; however, the jury, as

exclusive judge of the credibility of witnesses, see Barshaw v. State, 342 S.W.3d 91, 96

(Tex. Crim. App. 2011), was free to believe her testimony that she fell asleep and woke

up to discover that Mwachande was sexually assaulting her. 11 The double-hearsay

statement relayed by Jed and Detective Spann, if true, would arguably support a finding

that the sexual encounter was consensual; however, the jury was entitled to disbelieve

that statement as well. See id. In any event, the evidence before the jury included

Mwachande’s recorded statement to Detective Spann in which he concisely stated: “I

stuck my penis in her vagina . . . while she was sleeping.” From that sentence alone, a


        11
            Even if the jury believed that Sarah was extremely intoxicated, that would arguably support the
jury’s finding of guilt under a theory that Mwachande knew that Sarah was either unaware that the sexual
assault was occurring or was unconscious or physically unable to resist. See TEX. PENAL CODE ANN. §
22.011(b)(3), (b)(5) (West Supp. 2011).

                                                   11
rational fact-finder could have found the essential elements of the crime beyond a

reasonable doubt. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A), (b)(3), (b)(5).

      The evidence was sufficient to support the conviction.             We overrule

Mwachande’s third issue.

                                    III. CONCLUSION

      The judgment of the trial court is affirmed.


                                                 DORI CONTRERAS GARZA,
                                                 Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of January, 2014.




                                            12
