                                 NO. 07-09-00047-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                DECEMBER 29, 2010


                       MICHAEL LEE JENNINGS, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


            FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                  NO. 19,694-A; HONORABLE HAL MINER, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION

      Appellant Michael Jennings appeals from his jury conviction of the offense of

sexual assault 1 and his sentence of imprisonment for a term of five years and a $10,000

fine. The confinement and $8,000 of the fine were suspended in favor of probation for

five years. Through three issues, appellant contends the evidence was insufficient to




      1
        See Tex. Penal Code Ann. ' 22.011 (Vernon Supp. 2010). This is a second
degree felony punishable by imprisonment for a term of not more than 20 years or less
than 2 and a fine not to exceed $10,000. See Tex. Penal Code Ann. ' 12.33 (Vernon
2003).
support his conviction and the trial court erred in admitting hearsay testimony. We will

affirm.


                                          Background


          Much of the evidence showing the events leading to appellant’s prosecution is

undisputed. Appellant arranged for another man, Richard Hughes, to engage in sexual

contact with appellant’s wife, in their bedroom and in appellant’s presence.              The

contested issues involve her consent to the arrangement and the nature of appellant’s

actions.


          Appellant and his wife were married in April 2002. Following the birth of their first

child in 2003, the couple’s sex life deteriorated, frustrating appellant. In November

2007, however, they learned she was pregnant with their second child. On December

15 of that year, with his wife’s agreement, appellant bathed and blindfolded her before

they engaged in oral sex and sexual intercourse without incident.


          Then on the evening of December 22, appellant again set the same scene,

starting with a bath for his wife and ending with her blindfolded on the bed in a

nightgown. As his wife described the events for the jury, she felt someone approach the

bed, move her nightgown up and spread her legs, and felt oral sex begin.                 It felt

“different,” and she believed something was “wrong.” When she said “honey,” appellant

responded, “I’m right here,” but his voice came from several feet away. She looked out

from under the blindfold and saw one Afigure@ coming toward her and another moving

away from her. Appellant laid down on the bed next to her, pulling her toward him.

According to her testimony, she said, Athat wasn=t you.@ He said Ayes, it was.@ She then
                                                2
said Athere=s somebody else here.@ Appellant denied it. She took off her blindfold and

saw a face reflected in the atrium window. Entering the bathroom and turning on the

light, she found a man, Hughes, she did not know. She ordered Hughes out of her

house.


      Hughes testified at trial, under immunity, that an acquaintance named AKat@

approached him on an Aadult friend finder@ internet site about a week before December

22, concerning a Athreesome.@ AKat@ put appellant and Hughes in contact and the two

engaged in several computer conversations.       Hughes agreed to the arrangement,

agreed to wear certain clothing, and agreed not to speak when he was in the room. He

arrived at the couple=s home on December 22. Hughes waited outside for about thirty

minutes and then saw appellant=s signal. He went into the house and was led into the

bedroom. The complainant was on the bed and appellant spread her legs apart with his

hands. Hughes knelt down and began to perform oral sex on her. When she called out

for appellant, he signaled Hughes to go into the bathroom. The complainant came into

the bathroom a few minutes later and was Avery riled,@ asked him who he was and

vehemently told him to leave.     Hughes testified appellant led him to believe the

complainant had consented to the sexual activity. He said appellant did not tell him she

was pregnant.


      The jury also heard appellant=s side of the story. He told the jury he and his wife

had discussed having a Athreesome@ several times over the years and in December,

she agreed. He entered an online chat room and located Hughes through an online




                                           3
acquaintance, a woman named AKat@, 2 who was interested in having a Athreesome@ with

the couple. They exchanged photographs and agreed on the date. He told Hughes

what to wear, to wait outside until he turned the porch light on and off, and not to speak

when he entered the house. He also testified that when Hughes performed oral sex on

his wife, Ashe got cold feet@ and that she Acouldn=t go through with it.@       Appellant

admitted the complainant told Hughes to get out of the house and that she was very

upset.


         Appellant testified the couple remained together until January 2008 when his

business failed. He also presented testimony showing his wife’s normal behavior at

Christmas events. It was not until February 1, 2008, that his wife reported the assault to

police. Appellant was indicted and arrested that month, and filed for divorce in April

2008.


         The indictment charged appellant with Athen and there intentionally and

knowingly caus[ing] the female sexual organ of [the complainant] to contact the mouth

of [Hughes], without [the complainant=s] consent.@ After his plea of not guilty, the case

was tried to a jury.




         2
        Appellant testified he met AKat@ online a few months before December 22. He
never met her in person but testified she had Aearned@ his trust A[t]hrough [their]
conversations.@

                                            4
                                        Analysis


Sufficiency of the Evidence


       In appellant=s first two issues, he contends the evidence presented at trial was

insufficient to support his conviction. Appellant argues the sexual activity that occurred

on December 22 was consensual, and that his participation in the events cannot justify

his conviction.


       In reviewing issues of evidentiary sufficiency, an appellate court views the

evidence in the light most favorable to the verdict to determine whether, based on that

evidence and reasonable inferences therefrom, a rational jury could have found each

element of the offense beyond a reasonable doubt. Brooks v. State, No. PD-0210-09,

2010 Tex.Crim.App. LEXIS 1240 (Tex.Crim.App. Oct. 6, 2010); Swearingen v. State,

101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197

(Tex.Crim.App. 2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).     If, given all the evidence, a rational jury would necessarily

entertain a reasonable doubt of the defendant=s guilt, due process requires that we

reverse and order a judgment of acquittal.         Swearingen, 101 S.W.3d at 95, citing

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S.

975,113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).           All evidence, whether properly or

improperly admitted, will be considered when reviewing the evidence for legal

sufficiency. Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).




                                            5
       Under Penal Code ' 22.011(a)(1)(c), 3 a person commits an offense if he

intentionally or knowingly Acauses 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.@ Section 22.011 contains definitions of conduct occurring

without consent.     The charge instructed the jury that the definition applicable here

required the State to show appellant’s wife did not consent to the sexual assault and

was “unaware that the sexual assault is occurring.”           Tex. Penal Code Ann. §

22.011(b)(5) (Vernon Supp. 2010).


       Appellant asserts the State sought to hold him responsible for the conduct of

Hughes. He argues the evidence does not support a finding he was the primary actor;

instead, the evidence shows he was Amerely present@ on the night of the assault. He

argues also that because Hughes did not act with the requisite culpability and because

appellant did not himself engage in non-consensual sexual contact with his wife, the

evidence is insufficient to show him guilty of sexual assault.             The argument

misperceives the application of section 22.011(a)(1)(c) in this case.


        The indictment charged appellant as the primary actor in the sexual assault of

his wife. There was no allegation charging appellant as a party to the offense. The

language of the statute contemplates the participation of a third party in sexual assaults.

Section 22.011(a)(1)(C) criminalizes the intentional or knowing act of causing the sexual

organ of another person, without that person’s consent, to contact, inter alia, the mouth

of another person, including the actor. The phrase “including the actor” makes clear that


       3
           Tex. Penal Code Ann. ' 22.011(a)(1)(c) (Vernon Supp. 2010).
                                             6
the defendant may, but need not be, the person whose mouth is caused to contact the

sexual organ of another person. It is sufficient for guilt under § 22.011(a)(1)(C) that the

defendant causes the unlawful contact. 4 Tex. Penal Code Ann. § 22.011 (Vernon Supp.

2010). Here, the actor was appellant, not Hughes. The State undertook to prove that

appellant, as the actor, caused his wife’s sexual organ to contact Hughes’s mouth,

without her consent. This is conduct proscribed by the statute.


       Appellant relies on Kimberlin v. State, 877 S.W.2d 828 (Tex.App.BFort Worth

1994, pet. ref=d), in which the court found the evidence legally insufficient to show the

defendant had sexual contact with the victim. However, the indictment and court=s

charge in that case required contact between the defendant’s mouth and the victim’s

sexual organ for conviction. Id. at 832. Appellant was not prosecuted for contacting his

wife’s sexual organ with his own mouth. We thus find Kimberlin distinguishable. 5


       As noted, under the court’s charge, the State was required to prove also that

appellant knew his wife was unaware that a sexual assault was occurring. See Tex.

Penal Code Ann. § 22.011(b)(5) (Vernon Supp. 2010). The definition of lack of consent

contained in § 22.011(b)(5) commonly has been applied in cases in which the victim

was asleep when sexual contact was initiated. See, e.g., Rodriguez v. State, No. 13-

06-00691-CR, 2008 Tex.App. LEXIS 9113 (Tex.App.—Corpus Christi December 4,


       4
       Appellant does not challenge on appeal the sufficiency of the evidence he
caused Hughes's sexual contact with his wife. See Tex. Penal Code Ann. § 6.04
(Vernon Supp. 2010).
       5
       Appellant also cites Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986) and
Wooden v. State, 101 S.W.3d 542 (Tex.App.—Fort Worth 2003, pet. ref’d). Both cases
concern the law of parties. Neither is applicable here.
                                             7
2008, no pet.); Jezierski v. State, No. 01-04-00755-CR, 2005 Tex.App. LEXIS 5475

(Tex.App.—Houston [1st Dist.] July 14, 2005, pet. ref’d) (mem. op., not designated for

publication); Cearley v. State, No. 07-98-0109-CR, 1998 Tex.App. LEXIS 7861

(Tex.App.—Amarillo December 18, 1998, pet. ref’d) (mem. op., not designated for

publication). In those cases, the sleeping victim did not consent to any sexual act and

presumably initially was not aware any sexual contact was occurring.


      As this court previously has noted, however, that a sexual assault victim

becomes aware that an assault is occurring does not defeat the actor’s guilt, because

the assault already has occurred.      Espinoza v. State, No. 07-04-0550-CR, 2005

Tex.App. LEXIS 3453 (Tex.App.—Amarillo May 5, 2005 no pet.) (mem. op. not

designated for publication) (applying §§ 22.011(b)(5)). Here, it appears the blindfolded

complainant realized very soon after Hughes began performing oral sex that the person

contacting her was not her husband. She became aware at that time that a sexual

assault was occurring. But, like in Espinoza, the offense was completed by then.


      Appellant contends 6 it “is impossible to believe that the conduct which is the

subject matter of this case occurred without [complainant’s] knowledge or consent.” He


      6
         Briefs in this case were filed before issuance of the opinion in Brooks, No. PD-
0210-09, 2010 Tex.Crim.App. LEXIS 1240. In appellant’s brief, he states the issue
challenging the evidence of lack of consent as one asserting factual insufficiency. His
argument on that issue, however, concludes with the assertion he is entitled to an
acquittal. An appellant is entitled to an acquittal only when the evidence of guilt is
legally insufficient under the Jackson v. Virginia standard. Jackson, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). To the extent that appellant intended an
argument he was entitled to a new trial under the factual sufficiency standard applied
before Brooks, we note that standard similarly required a reviewing court to defer to the
jury’s resolution of conflicting testimony. Mosley v. State, 983 S.W.2d 249, 254
(Tex.Crim.App. 1998); Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996).
                                           8
points to her agreement that she and her husband had discussed involving a third

person in their sexual activity, and the testimony that even after Hughes left their home

the couple slept in the same bed, that family Christmas events occurred on December

23 and 24 without incident, and that the family continued to live together until January

24, 2008. He points out they shared a bed and engaged in sexual relations until their

January 24 separation, and that his wife waited until February 1 to report the assault to

police. 7   He further points to discrepancies in her reports of the assault. Appellant

asserts that his wife reported the incident to gain leverage in their custody litigation.


        The jury was free to believe the complainant’s testimony she did not agree to

participate in a “threesome,” and did not consent to sexual activity with Hughes. The

jury also heard the testimony of Hughes and complainant’s friend, both of whom opined

the complainant did not consent.       The jury, being the sole judge of the facts and

credibility of the witnesses, may believe or not believe a witness or any portion of their

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); Rojas v. State,

171 S.W.3d 442, 445-46 (Tex.App.-Houston [14th Dist.] 2005, pet.ref'd).             See also


We find that, viewing the evidence in a neutral light under that formerly-applied
standard, the jury did not act irrationally by finding the wife’s testimony about her
consent credible, and finding beyond a reasonable doubt that she did not consent to the
sexual contact with Hughes. See Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.
2008); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State,
204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (all applying former factual sufficiency
standard).
        7
        The complainant testified she and their child moved to her parents’ home on
January 24 after appellant threatened to kill his business partner and himself when his
business failed. She called police that day to report her husband’s threat and an officer
came to their home to take the report. She did not mention the December 22 sexual
assault to the officer, but told her parents. As noted, the assault was reported to police
on February 1.
                                              9
Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). Viewing the evidence in

a light most favorable to the verdict, we conclude that a rational jury could find beyond a

reasonable doubt that the complainant did not consent to the sexual activity with

Hughes and was unaware the sexual assault was occurring. See Mauldin v. State, No.

05-09-00513-CR, 2010 Tex.App. LEXIS 1862 (Tex.App.—Dallas March 17, 2010, pet.

ref’d) (mem. op., not designated for publication); Espinoza, No. 07-04-0550-CR, 2005

Tex.App. LEXIS 3453. The evidence is sufficient to support appellant=s conviction for

the offense of sexual assault.


       We overrule appellant=s first two issues.


Admission of Testimony


       In appellant=s last issue, he complains of the trial court=s admission, over his

hearsay objection, of testimony from a friend of the complainant.         She testified the

complainant called her the night after the assault, December 23, and told her about the

assault. She was “very stressed, very upset” and was crying. The friend testified the

complainant told her she was afraid of a divorce and was Atrying to keep it together so

her daughter could have a normal Christmas . . . .@ The friend saw the complainant a

few days later, on December 26, and testified she was still visibly upset.


       The trial court admitted the testimony as an excited utterance. See Tex. R. Evid.

803(2); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (applying rule).


       On appeal, the State argues the issue is not preserved for our review, and we

must agree. After the trial court’s ruling, the friend testified without further objection to

                                             10
details of her telephone conversation with the complainant. Appellant also explored the

conversation, and the complainant’s emotional state during it, on cross examination.

See Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App. 2008) (party must object each

time inadmissible evidence is offered or obtain a running objection); Valle v. State, 109

S.W.3d 500, 509 (Tex.Crim.App. 2003) (error in admission of evidence cured where the

same evidence comes in elsewhere without objection). Accordingly, appellant’s third

issue is overruled.


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                                        James T. Campbell
                                                             Justice




Do not publish.




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