Opinion filed August 21, 2015




                                          In The


           Eleventh Court of Appeals
                                      __________

                                No. 11-14-00143-CR
                                    __________

                   JOHN EDWARD HOLMES, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 142nd District Court
                             Midland County, Texas
                         Trial Court Cause No. CR39464


                      MEMORANDUM OPINION
      The jury found Appellant, John Edward Holmes, guilty of sexual assault1
and assessed punishment at confinement for a term of fifteen years. The trial court
sentenced Appellant accordingly. Appellant asserts a sufficiency issue and an
evidentiary issue on appeal. We affirm.
                                  I. The Charged Offense
      The grand jury indicted Appellant for the offense of aggravated sexual
assault.   The jury found Appellant guilty only of the lesser included offense of

      1
       TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2011).
sexual assault. A person commits the offense of sexual assault if the person
intentionally or knowingly “causes the penetration of the anus or sexual organ of
another person by any means, without that person’s consent.”                  PENAL
§ 22.011(a)(1)(A). As charged in this case, “without consent” means that the actor
compels the other person to submit or participate by the use of physical force or
violence or that the actor compels the other person to submit or participate by
threatening to use force or violence against the other person and that the other
person believes that the actor has the present ability to execute the threat. See id.
§ 22.011(b)(1), (2). The offense of sexual assault is a second-degree felony. Id.
§ 22.011(f). The range of punishment for a second-degree felony is confinement
for not more than twenty years or less than two years. Id. § 12.33(a).
                                II. Evidence at Trial
      The victim, C.S., testified that she lived with Appellant from October 26,
2011, to December 3, 2011, in Midland, Texas. The two met at a bus station in
Montgomery, Alabama, in April of that year, and after several months of
communication, C.S. moved in with Appellant and began a romantic relationship
with him. The relationship deteriorated after C.S. learned of Appellant’s possible
infidelity, and C.S. confronted him about it at his place of work. After Appellant
attempted to dispel C.S.’s concerns, C.S. left but returned later to pick him up at
the end of his shift. On the way back to Appellant’s apartment, Appellant became
increasingly angry at C.S.’s silence toward him.         After they arrived at the
apartment, C.S. remained silent as Appellant threatened to rape her.
      Appellant then moved some of C.S.’s belongings outside, and as C.S. exited
the apartment, Appellant grabbed her by the hair, placed her in a headlock, and
took her back into the apartment. C.S. testified that the headlock restricted her
breathing. She said that Appellant stated, “[Y]ou’re going to give me my p---y.”
Appellant continued to assault her and restrict her breathing before he tore off her
                                         2
clothes, took her into the bedroom, threw her onto an air mattress, forced open her
legs, and penetrated her vagina with his penis. C.S. said Appellant “violently”
raped and hurt her. She testified that he said after the assault, “That’s my p---y”
and “a raped p---y is the best p---y.” After the rape, C.S. told Appellant she was
going to report the rape to the police. Appellant responded, “No. We’re going to
take a shower,” and he attempted to wash away the evidence from her vaginal area
with antibacterial soap.
      C.S. remained at the apartment that night, fearing that Appellant would harm
or kill her if she attempted to leave. C.S. dropped off Appellant at work the next
morning and returned to his apartment. C.S. packed her belongings and vandalized
Appellant’s apartment. Afterward, C.S. went to Midland Memorial Hospital for
treatment and a sexual assault evaluation.
      Donna Doyle, a certified sexual assault nurse examiner (SANE), testified
she was a nurse at Midland Memorial Hospital. Doyle testified she took a medical
history from C.S. and performed a sexual assault examination shortly after C.S.
arrived at the hospital. Doyle completed a body surface and genital examination.
She collected hair and blood evidence from C.S.; scrapings and swabs from C.S.’s
fingernails; swabs from C.S.’s mouth, vagina, and anus; and a debris swab from a
bite mark. Doyle noted that C.S. had bruises on her fingers, arms, and above an
elbow; a bite mark on her inner upper arm; and vaginal injuries consistent with
sexual assault. Doyle testified that C.S. identified Appellant as her attacker, but
Doyle said she could not rule out the possibility that the bruises and injuries
resulted from consensual sex.
      Detective Rodriguez testified she took C.S’s statement at the hospital just
before the SANE examination. Detective Rodriguez’s investigation led her to
suspect Appellant of the crime. When Appellant was questioned at the Midland


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Police Department, after he received and waived his Miranda2 rights, Appellant
never mentioned he had a sexual relationship with C.S. However, when the DNA
samples were taken, Appellant volunteered to Detective Steven Sanders of the
Midland Police Department, without being asked any questions, that Appellant had
sexual relations with C.S. “all the time.”
         Detective Sanders testified that he took DNA swabs from Appellant and
gave them to Detective Rodriguez. Detective Rodriguez obtained the results of the
SANE examination and logged them into evidence; he did the same with the DNA
swabs. Those DNA swabs were tested by Caitlyn Lott, a forensic DNA analyst,
and by Sarah Rothwell, a forensic DNA scientist—both of whom were employed
by the Texas Department of Public Safety Crime Laboratory.
         Rothwell testified that she tested samples from Appellant’s swabs and
samples from C.S.’s blood and vaginal swabs. Rothwell testified that, as to the
“DNA profile from the sperm fraction of the vaginal swab, suspect Holmes cannot
be excluded as the contributor of the major component in the profile” and that the
probability of selecting an unrelated person at random to be the source of the major
component was “one in 20.62 sextillion”3 for African-Americans. She opined with
a reasonable degree of scientific certainty that Appellant was the source of the
major component in the DNA profile.
                                        III. Issues Presented
         Appellant first argues that the evidence was insufficient to support a
conviction for the lesser included offense of sexual assault. Second, Appellant
argues that the trial court abused its discretion when it excluded C.S.’s prior
conviction for prostitution.


         2
          Miranda v. Arizona, 384 U.S. 436 (1966).
         3
          Sextillion is a cardinal number represented in the United States by one followed by twenty-one
zeros.
                                                     4
                              IV. Standard of Review
      The standard of review for sufficiency of the evidence is whether any
rational jury could have found Appellant guilty beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We review all of the evidence in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. The trier of fact
may believe all, some, or none of a witness’s testimony because the factfinder is
the sole judge of the weight and credibility of the witnesses. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248
(Tex. App.—Eastland 2008, pet. ref’d).
      The standard of review for the admission or exclusion of evidence is an
abuse of discretion standard, and the trial court is to be afforded wide discretion in
ruling on the admissibility of a prior conviction. Theus v. State, 845 S.W.2d 874,
881 (Tex. Crim. App. 1992). The trial court has the discretion to include or
exclude evidence of a victim’s prior criminal convictions. Jones-Jackson v. State,
443 S.W.3d 400, 402 (Tex. App.—Eastland 2014, no pet). A trial court abuses its
discretion when its decision lies outside the zone of reasonable disagreement.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Even if the trial
court gave the wrong reason for its decision, the decision will be upheld as long as
it is correct on some theory of law applicable to the case. Osbourn v. State, 92
S.W.3d 531, 538 (Tex. Crim. App. 2002).
                                     V. Analysis
      We will first address Appellant’s challenge to the sufficiency of the
evidence. We will then address his second issue regarding the exclusion of C.S.’s
1999 conviction for prostitution.
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      A. Issue One: Sufficiency of the Evidence
      Appellant argues that the evidence at trial was insufficient to support his
conviction because C.S.’s actions after the sexual assault did not reflect the actions
of a typical sexual assault victim. Appellant further argues that the lack of acute
vaginal injury was inconsistent with sexual assault and was evidence of consensual
sex and his innocence. Sexual assault victims do not react uniformly. Shaw v.
State, 764 S.W.2d 815, 818 (Tex. App.—Fort Worth 1988, pet. ref’d) (expert
testimony that victims of “acquaintance rape” often remain calm after the assault
and delay reporting it). The morning after the sexual assault, C.S. returned to
Appellant’s apartment and vandalized it, including the air mattress on which she
was sexually assaulted; C.S. then left Appellant’s apartment with her belongings
and later reported the crime to the police. C.S. also took some of Appellant’s
personal belongings from the apartment because she hoped he would call the
police.
      C.S. initially went to the hospital for treatment, and the police were called
when C.S. explained why she was there. After C.S. reported the sexual assault to
the police, she was taken to a different location for a SANE examination. Doyle
treated C.S., and Doyle testified that C.S. sustained an injury to her vagina.
Appellant claimed there was no assault because there was no acute injury to the
labia majora, labia minora, and vagina. But Doyle outlined that, in ninety-four
percent of sexual assault cases, there is no acute injury to the labia majora, labia
minora, and vagina. Doyle also testified that C.S.’s account was consistent with
the injuries she suffered and that those injuries indicated an assault took place.
      Detective Rodriguez took C.S.’s statement at the hospital before the sexual
assault examination. Detective Rodriguez obtained the results of the examination
and logged them into evidence. Detective Sanders testified he took buccal swabs
from Appellant as part of an investigation of Appellant. Once the DNA samples
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were tested, Appellant could not be ruled out as the contributor of the sperm
portion from C.S.’s vaginal swab. The probability that the sperm belonged to
someone else was at least one in 20.62 sextillion.
      C.S. described in detail how Appellant threatened her, tore off her clothes,
threw her onto the air mattress in the bedroom, forced her legs apart, and violently
penetrated her vagina with his penis without her consent. The jury may believe all,
some, or none of a witness’s testimony because the jury, as factfinder, is the sole
judge of the weight and credibility of the witnesses. Sharp, 707 S.W.2d at 614.
The jury was free to believe C.S.       We defer to the jury’s resolution of any
conflicting inferences raised in the evidence and presume that the jury resolved
such conflicts in favor of the prosecution. Jackson, 443 U.S. at 318; Brooks, 323
S.W.3d at 894; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
We have reviewed the record, and we hold that a rational jury could have found
beyond a reasonable doubt that Appellant sexually assaulted C.S. We overrule
Appellant’s first issue.
      B. Issue Two: The Exclusion of the Victim’s Prior Prostitution
         Conviction
      Appellant argues he should have been allowed to introduce evidence that
C.S. had a prior conviction for prostitution. The trial court forbade Appellant from
impeaching C.S. with a remote misdemeanor conviction for prostitution. The trial
court found that the probative value of the 1999 conviction was outweighed by its
prejudicial effect.
      A trial court has the discretion “to impose reasonable restrictions or limits on
cross-examination without violating an accused’s constitutional right to confront
witnesses.” Nevels v. State, 954 S.W.2d 154, 157 (Tex. App.—Waco 1997, pet.
ref’d). Rule 609(a) provides that a witness’s character for truthfulness may be
attacked by evidence that the witness has been previously convicted of a felony

                                          7
crime or a crime of moral turpitude, regardless of punishment, if the trial court
determines that the probative value of the evidence outweighs its prejudicial effect
and the evidence is elicited from the witness or established by a public record.
TEX. R. EVID. 609(a); Jones-Jackson, 443 S.W.3d at 402; see also TEX. R. EVID.
412 (admissibility of evidence of victim’s previous sexual conduct). Rule 609(b)
limits the reach of Rule 609(a) by providing that a conviction more than ten years
old is inadmissible, unless the court determines that “its probative value, supported
by specific facts and circumstances, substantially outweighs its prejudicial effect.”
TEX. R. EVID. 609(b).
      Appellant argues the “tacking” doctrine applies and requires an analysis
under the standard of “outweighs,” under Rule 609(a), rather than the standard of
“substantially outweighs,” under Rule 609(b). But the tacking doctrine, as we have
recently held, no longer applies, and the “substantially outweighs” standard in
Rule 609(b) is the exclusive standard to use to determine the admissibility of C.S.’s
remote convictions. Jones-Jackson, 443 S.W.3d at 403.
      The Court of Criminal Appeals set out the following factors in Theus to
weigh the value of such evidence: (1) the impeachment value of the prior crime,
(2) the temporal proximity of the past crime relative to the charged offense and the
witness’s subsequent criminal history, (3) the similarity between the past crime and
the offense being prosecuted, (4) the importance of the witness’s testimony, and
(5) the importance of the witness’s credibility. 845 S.W.2d at 880.
      Prostitution is a crime of moral turpitude. Holgin v. State, 480 S.W.2d 405,
408 (Tex. Crim. App. 1972); Husting v. State, 790 S.W.2d 121, 126 (Tex. App.—
San Antonio 1990, no pet.). But the impeachment value of an admission of such a
conviction is low in C.S.’s case because such an admission would not have made
her allegations less credible, given the other evidence in the case. And, although
C.S.’s credibility was an important part of the case, the lack of deception involved
                                          8
in the remote conviction and the lengthy time period between that conviction and
the present trial weighed heavily against the inclusion of the remote conviction for
prostitution. In addition, the similarity factor is inapplicable here because C.S. was
the victim of the crime. We have weighed all the relevant factors, and we hold that
the trial court did not abuse its discretion when it prohibited Appellant from
impeaching C.S. with her remote misdemeanor conviction for prostitution. We
overrule Appellant’s second issue.
                                   VI. Conclusion
      We have reviewed the record and hold that there was sufficient evidence for
a rational jury to find beyond a reasonable doubt that Appellant committed the
offense of sexual assault. We also hold that the trial court did not abuse its
discretion when it excluded evidence of C.S.’s remote conviction for prostitution.
                             VII. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


August 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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