                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00489-CR


ALLEN KEITH ANDERSON, SR.                                        APPELLANT
A/K/A ALLEN K. ANDERSON

                                         V.

THE STATE OF TEXAS                                                  STATE



                                     ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                     ------------

                       MEMORANDUM OPINION1

                                     ------------

                                  I. Introduction

      In a single point, Appellant Allen Keith Anderson, Sr. a/k/a Allen K.

Anderson appeals his conviction for sexual assault. We affirm.




      1
      See Tex. R. App. P. 47.4.
                                 II. Background

      The State charged Anderson with the sexual assault of Lori Miller (a

pseudonym). Anderson pleaded not guilty, but a jury found him guilty as charged

in the indictment and assessed his punishment at six years’ confinement. 2 This

appeal followed.

                                  III. Sufficiency

      Anderson concedes that under the applicable standard of review, the

evidence in the record establishes that he had sexual intercourse with Miller.

However, he complains that the evidence did not prove beyond a reasonable

doubt that she did not consent to the intercourse.

A. Standard of Review and Applicable Law

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

      2
      Because Anderson challenges only the sufficiency of the evidence to
support his conviction, we will discuss the facts below.

                                         2
at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).          Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

      As authorized by the indictment, the jury convicted Anderson of

intentionally or knowingly causing the penetration of Miller’s female sexual organ

by inserting his penis or his finger into it while knowing that he did so without her

consent and that she was either unconscious or physically unable to resist or that

she did not consent and was unaware that the sexual assault was occurring.

See Tex. Penal Code Ann. § 22.011(a)(1)(A), (b)(3), (5) (West 2011); Byrd v.

State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997). When assent in fact has not been given, and

the actor knows that the victim’s physical impairment is such that resistance is

                                         3
not reasonably to be expected, sexual intercourse is ―without consent‖ under the

sexual assault statute. Elliott v. State, 858 S.W.2d 478, 485 (Tex. Crim. App.),

cert. denied, 510 U.S. 997 (1993).

B. Analysis

      Anderson argues that the evidence is insufficient to show that he

penetrated Miller without her consent because she was either unconscious or

physically unable to resist or unaware that the sexual assault was occurring,

stating that

      [t]he State had urine samples taken from Ms. Miller at the hospital
      but never presented any type of scientific evidence to prove whether
      Ms. Miller might have been unconscious and/or physically unable to
      resist due to ingestion of too much alcohol or any type of drugs. To
      the contrary, the evidence presented by the State actually proves
      that Lori Miller knew what was going on and told [Anderson] ―no‖ and
      kicked at him. The probative facts of this case do not support a
      conviction for the offense alleged in the indictment.

      The State replies that Anderson’s entire argument is that ―since there was

(in his view) conflicting evidence regarding the victim’s recollections of the attack,

it follows that he is entitled to a reversal. This is simply not the state of the law in

Texas‖ because a verdict is not subject to acquittal simply because the defense

has presented a reasonable alternative hypothesis.           See Wilson v. State, 7

S.W.3d 136, 141 (Tex. Crim. App. 1999) (―We have rejected the reasonable

hypothesis construct as a measure of legal sufficiency.‖).




                                           4
      1. Evidence on Consent

      Lori Miller, a school teacher working on her doctorate degree, testified that

on December 11, 2009, she left her car at a Starbucks and rode with Sherri

Stephens, an acquaintance she had known for almost a year, to a tour of

Christmas lights in the Plano area. They arrived around 7:00 p.m. and boarded

the tour bus with their beverages—Miller had brought a thermos of hot cocoa

with two shots of bourbon in it, and Stephens had brought five beers. The tour

stopped at a convenience store at one point, and Miller bought a four-pack of

miniature wine bottles and drank one of the bottles instead of the cocoa because

it was hot inside the bus. Stephens drank all five beers.

      The tour ended around 11:00 p.m., and Miller was tired and wanted to go

home, but Stephens was driving and wanted to go out, telling Miller that she just

wanted to have one drink.3 They ended up at Rob’s Billiards, a bar Stephens

said neither woman was familiar with. Stephens drank a bottle of beer and then

ordered a pitcher of beer and invited two men—Anderson and Charles

Williams—to their table; Miller and Stephens both testified that Miller drank only

water at the bar. Miller said that she was not intoxicated or buzzed at all by this

point. They stayed at the bar until last call, around 2:00 a.m.




      3
        Contrary to Miller’s testimony, Stephens testified that she did not recall
Miller telling her that she was tired and wanted to go home. Instead, Stephens
said that she thought they had both planned all along to hang out later.

                                         5
      At last call, the men invited Miller and Stephens back to their apartment,

but both women refused. Miller testified that she said she was tired and wanted

Stephens to take her back to her car so that she could go home and that

Anderson said, ―Oh, well, we’ll go to your apartment.‖       Miller refused, and

someone brought up going to Stephens’s house instead.           Miller said that

Stephens hesitated at first and then asked Miller to come because she did not

want to be alone with the men.

      Stephens testified that Miller just said that she wanted to get her car and

follow them but that Stephens did not feel Miller was capable of driving because

Miller ―had had quite a bit to drink,‖ even though Stephens acknowledged that

Miller drank only water at the bar and that Miller’s last alcoholic beverage had

been around 11:30 p.m. Miller said that Stephens was between buzzed and

drunk when they left Rob’s Billiards.

      The parties stopped for some more alcohol on the way to Stephens’s

house. Miller and Williams rode with Stephens to her house; Anderson followed

in a separate car. Once inside the house, Miller sat on the couch while Stephens

took out some Crown Royal and Pepsi and started mixing drinks. Miller drank

some water, plugged her cell phone into Stephens’s laptop, and then went back

to the couch and started to fall asleep. Miller opened her eyes when Anderson

shoved her and said, ―You were supposed to come over and hang out with us.

This isn’t hanging out.‖ Miller put her shoes on and joined everyone outside, but



                                        6
because it was cold, she went back in, removed her shoes, covered herself with

a blanket, and fell asleep on the couch.

      Miller testified that the next thing she remembered was Anderson sitting

down on the end of the couch and asking if he could lay down with her. She said

no. Stephens and Williams kept going in and out of the house during this time,

while Miller went back to sleep. Stephens said that at some point when she and

Williams came back inside, Miller and Anderson were no longer in the living

room. Miller said that the next thing she recalled was waking up in Stephens’s

guest room in a pool of her own blood.

      Miller said that upon awakening, her first thoughts were, ―Where am I and

how did I get here, and it was just all unfamiliar. I couldn’t remember. Finally it

dawned on me that I’m at [Stephens’s] house. That’s when I noticed the wet

feeling under me.‖ Miller stated that all of her clothes were on the floor, next to a

pile of men’s clothing. Miller wrapped herself in a blanket and pulled the bloody

sheets from the bed before scooping up her clothes.

      The door of the nearby bathroom was locked, and she could hear the

sound of a shower. Miller returned to the bedroom, stating,

             I shut the door, and eventually—I don’t even know how long it
      was. I didn’t want to sit back down on the bed because I had blood
      all over me, so I just stood there, and eventually the bedroom door
      opened and [Anderson] came in and he had a towel or a blanket
      wrapped around his waist and he was wet. So I just walked past
      him, and at that point, I became very scared of what might have
      happened. I went into the bathroom and I sat down on the toilet and
      blood was just pouring out of me. I felt very faint, very weak, very
      dizzy.

                                           7
Miller showered, used some toilet paper to try to stop the bleeding, and put her

clothes on.       She took the bloody sheets to the kitchen and asked Stephens

where her laundry room was; Stephens, who testified that she did not recall how

many Crown and Pepsi cocktails she had consumed that night, was ―pretty drunk

at that point.‖

       Stephens testified that she remembered Miller bringing out the sheets and

saying that she thought she had started her period. She did not recall where

Anderson was at any particular point in time.

       Miller said that after she put the sheets in the washer, she went back to the

guest room. Anderson came in, turned on the light, and asked what she was

doing. She told him that she was tired and just wanted to sleep. He turned off

the light, shut the door, then returned a few minutes later, turned the light on

again, and opened a window. She heard some clattering. She asked him for

water and for her cell phone; he brought her some water but said her cell phone

was not there.

       Miller said that she was extremely thirsty, stating, ―[A]s I kept drinking the

water, I kept feeling worse, and that’s when I started suspecting that I had been

drugged at some point. That’s why I couldn’t remember how I got to the guest

room.‖ She denied that she had in any way implied by her actions or words to

Anderson that she wanted to have sexual intercourse with him, stating, ―In fact, it

was the opposite. I was completely disinterested. All I wanted to do was sleep.‖



                                          8
      At some point, Stephens told Anderson and Williams to leave. When Miller

asked Stephens to call 911, Stephens realized that her phone was missing.

Stephens borrowed a neighbor’s phone and called 911. Stephens answered the

door when the police arrived, and Miller said that she heard Stephens tell the

officer, ―I think my friend was drugged.‖ The officer called victim’s assistance to

take Miller to the hospital. It was around 11:00 a.m. when Miller arrived at the

hospital.

      Miller underwent a sexual assault examination and then was transferred to

the OB/GYN trauma unit to repair the lacerations in her cervical wall.        Miller

stated,

            [S]omewhere between talking to Sarah [the victim’s assistance
      counselor] and the SANE[4] nurse, I had flashes of me kicking him, of
      me being in that bedroom, in that bed, and me kicking him and
      saying ―Stop,‖ and then him being by my head and saying, ―I’m
      going to make you pay.‖

      Arlington Police Officer Tracey Beseda testified that she was dispatched to

Stephens’s house around 7:27 a.m. on a report of theft. Stephens answered the

door, reeking of alcohol and appearing intoxicated. Miller made herself known to

the officer by calling out from the guest room.        Officer Beseda called for

assistance and for a crime scene investigator, briefed the officers who arrived,

and then followed the victim assistance van to the hospital.




      4
          SANE is an acronym for sexual assault nurse examiner.

                                         9
      Heather Gerarde, the sexual assault nurse examiner, testified that she

performed the sexual assault exam on Miller. She testified as follows with regard

to what Miller told her during the exam:

             She was at a bar, went over to her friend’s house, fell asleep
      on the couch, awoke in her friend’s room with a man on top of her.
      She remembers pushing him off with her legs. She remembers
      drinking water that night. She remembers his face rubbing up
      against her face, she remembers yelling ―no‖ multiple times. She
      remembers waking up in the bed in a pool of wet substance, getting
      up and blood running down the insides of her legs, realizing that the
      pool that she was laying in was blood. She remembers him being in
      the shower. She put her clothes back on and ended up getting into
      a fetal position in the corner, was still bleeding, was complaining of
      abdominal pain, and he was telling her to get back up. She said it—
      it stung when she urinated, and that she had pressure in her lower
      abdomen.

Gerarde stated that Miller did not remember everything that occurred during the

sexual assault but did recall trying to push him or kick him off of her and saying

―no,‖ that his penis and his finger went in her vagina, and that Anderson said to

her in a whisper that he was going to make her pay, ―but the rest of the accounts

were unknown because she had loss of consciousness.‖

      Gerarde said that Miller told her the assault occurred between 3:28 a.m.

and 5:00 a.m. because the last time she had looked at her phone was 3:28 a.m.,

when she was on the couch in the living room. Gerarde testified that on the

inside of Miller’s vagina, ―she had multiple blood clots and some tissue that we

had to remove with forceps,‖ that it was abnormal to see blood clots there,




                                           10
particularly since Miller was not menstruating, and that of all the exams Gerarde

had done, ―this is the worst vaginal injury that [she had] seen.‖5

      Dr. Catherine Olsen, the surgeon who sutured the second-degree

laceration to Miller’s fornix—the space between the cervix and rectum—testified

that Miller would not have healed without surgery. Dr. Olsen said that the injury

was caused by penetration, that a penis could not have caused the injury, and

that a fingernail could have because it would have had to have been caused by

something with an edge. Dr. Olsen also noted that there were multiple abrasions

on Miller’s female sexual organ.

      Dr. Olsen then gave the following testimony:

              Q. So that was not a superficial cut in any way, shape[,] or
      form?

              A. No.

            Q. Would you agree with me, Dr. Olsen, that the more relaxed
      a woman is and the more relaxed her vagina is, the easier it is for
      penetration for a penis, a finger[,] for any kind of object?

              A. Yes.

             Q. Maybe the trust issues go along in with that, but also
      physically relaxed as well. And the most relaxed that a person could
      be is probably if they are unconscious due to intoxication, sleep[,] or
      any other method of being unconscious or unaware?

              A. Yes.



      5
        Gerarde obtained a urine sample from Miller after 2:00 p.m. that afternoon
and finished the exam at 4:20 p.m. No one testified about the results of any
testing on the urine sample.

                                         11
            Q. So someone laying down sleeping or laying down in bed
      should be able to withstand penile penetration or digital penetration
      and not have sustained wounds like that?

             A. Correct.

            Q. And, in fact, if you see somebody who has a wound like
      that and has been—and they tell you that they had been laying down
      when that occurred, what does that suggest to you? I mean, how
      much force was needed to create something like that?

            A. I think that had to have been a forceful entry or a forceful—
      there had to have been a certain amount of force to go into that.
      And for that kind of injury, to not be in excruciating pain, the person
      would have to be asleep in some way or not conscious in some way,
      because that’s—that’s a pretty extensive wound.

             Q. Might that, a wound like that, wake them up or bring them
      out of unconsciousness?

             A. If that happened while somebody was asleep, they would
      definitely wake up.

      Stephens reported a number of items missing from her house, including

Playstation games, the women’s cell phones, and her laptop. Police found air

fresheners, soap, and a Playstation game in the bushes outside the house. A

partial palm print lifted at the scene was matched to Anderson.

      Arlington Police Detective Becky Szatkowski testified that she interviewed

Anderson twice during the case. She did not tell him about the investigation for

sexual assault before she started the first interview. Anderson told her that he

was at Rob’s Billiards before Christmas in 2009 with a friend, that they met two

―white chicks‖ in their thirties there, and that they went to the house of one of the

women, where he had sex with one of them. He did not remember Miller’s name.



                                         12
      Anderson told the detective that Miller had been ―just sipping‖ beer but not

drinking a lot at the bar and that she did not drink anything at the house. He also

told the detective that he had touched Miller in her vaginal area or on her clitoris

with his fingers while she was in the living room and that the touching was

consensual. He stated that he had penile-vaginal sex with Miller, that he wore a

condom, and that he stopped when she started her period. Detective Szatkowski

then gave the following testimony:

            Q. And did he describe to you in detail about that—the sex
      that he had with the victim?

            A. He did. He said that he was on top of her, and that they
      were kissing on each other, he was kissing her face and neck and
      chest, and that it was a consensual act.

            Q. Did he describe how long it lasted?

            A. Five to six minutes.

            Q. And did he tell you why it stopped?

            A. Yes, he did. He said that he pulled out to check himself,
      and that there was blood on the condom.

            Q. Did you find that strange for him to say that he pulled out
      to check himself?

            A. Yes.

            Q. Why did you think that was strange?

             A. It was odd to me that during a sexual encounter he’s going
      to just stop to—to look at—I mean, he’s described it as looking at
      himself, and that he’s going to stop that encounter prior to having
      any kind of climax to look at himself.

           Q. Did he say whether he turned on the light to check his
      condom?

                                        13
      A. Yes. He said he turned on the light.

      Q. What did he say he saw when he turned on the light?

      A. He saw blood on his condom.

      Q. And how did he feel about that?

      A. He was very upset about it.

      Q. Did he tell you why he was upset?

       A. Because he did not appreciate that she didn’t tell him that
she was on her period. He said that the time he looked that she was
telling him that she was on her period and he thought it was, in his
words, nasty that she would bleed or be on her period and he would
be exposed to her blood.

      ....

      Q. Did he later tell you anything about the amount of blood?

     A. He said it was a lot of blood, and he said he can’t ever
remember seeing that much blood from somebody’s period.

      ....

     Q. Did you ever ask him, was she wearing a sanitary pad or
tampon?

       A. Yes. I asked if he saw a sanitary pad, and he said no. I
asked if when he touched her clitoris, if there was blood on his
fingers or if there was any other time that, you know, he saw the
blood, and he said no.

      ....

      Q. Did he ever say anything about not lying to you?

       A. Yes. At the end of the—at the end of that interview, he
basically told me if he thought he was going to be in trouble for
something, and this is not an exact quote, but if he thought he was
going to be in trouble for something, then he would lie about it to get
out of trouble.


                                  14
      When Detective Szatkowski told Anderson that Miller had been injured, he

did not show surprise or ask what her injuries were. During this interview, he

denied knowing anything about Miller’s cell phone or taking anything from

Stephens’s house. Anderson denied that he had committed sexual assault, said

that his sexual encounter with Miller was consensual and that they walked into

the guest room, and said that he flushed the condom.

      Miller gave Detective Szatkowski the serial number of her cell phone, and

after Anderson’s first police interview, the detective obtained a warrant to search

Anderson’s apartment.      Detective Szatkowski found Miller’s cell phone in

Anderson’s apartment.

      Detective Szatkowski met with Anderson again the day after the search

warrant issued. When asked about Miller’s cell phone, Anderson initially claimed

that it was his cell phone and that he had bought it for $40 on the night they met

at Rob’s Billiards before they went to Stephens’s house.       However, he later

admitted taking the cell phone and Stephens’s laptop, which he ―sold . . . to a guy

named A.J. for $350.‖    He also admitted taking some bath soap ―because it

smelled good‖ and that he was able to take these items by putting them out a

window.

      2. Analysis

      Although there was some evidence in the record that at some point during

one of their encounters that evening, Miller might have been conscious enough

to kick Anderson off of her and tell him ―no,‖ from the rest of the evidence, the

                                        15
jury could have concluded that Anderson penetrated Miller with his penis or with

his finger without her consent and while she was either unconscious or physically

unable to resist or unaware that the sexual assault was occurring.

      Miller testified that she was on the couch in the living room when Anderson

asked if he could lay down with her, that she said no, that she went to sleep, and

that the next thing she immediately recalled was waking up in a pool of her own

blood in the guest room, while Detective Szatkowski testified that Anderson told

her that he touched Miller’s female sexual organ with his finger with Miller’s

consent while Miller was on the couch in the living room. Therefore, the jury

could have concluded from the evidence that Anderson digitally penetrated Miller

without her consent.

      Further, Anderson admitted to Detective Szatkowski that he penetrated

Miller with his penis, and the jury was entitled to infer that Miller was unconscious

during the initial penetration. Gerarde testified that during Miller’s SANE exam,

Miller recalled falling asleep on the couch and waking up in Stephens’s room

―with a man on top of her,‖ that his penis and his finger went into her female

sexual organ, and that she tried to push him off of her with her legs, resulting in

Anderson’s threat to make her pay. Miller testified that at some point prior to her

sexual assault exam with Gerarde, she had flashbacks of being in the bed in the

guest room, kicking Anderson, saying ―Stop,‖ and hearing him say that he would

make her pay, but she did not testify about what point during this encounter she

awoke from her nap on the couch to find herself in bed with Anderson.

                                         16
      And the jury could have concluded that Anderson penetrated Miller’s

female sexual organ with something—possibly his finger—and lacerated her

fornix which, according to Dr. Olsen, Miller would have to have been either

asleep or unconscious to endure, even though Dr. Olsen also testified that

someone laying down or sleeping should have been able to withstand digital or

penile penetration without sustaining such a wound.

      While Detective Szatkowski said that Anderson claimed that his digital and

penile penetration of Miller was consensual, Miller testified that it was not. The

jury was entitled to resolve conflicts in the testimony, weigh the evidence, and

draw reasonable inferences. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Isassi, 330 S.W.3d at 638. Viewed in the light most favorable to the verdict, we

conclude that the jury could have found beyond a reasonable doubt that Miller

did not consent to any of Anderson’s penetrations, and we overrule his sole

point. See Elliott, 858 S.W.2d at 485; see also Lewis v. State, No. 13-10-00655-

CR, 2012 WL 29326, at *3–4 (Tex. App.—Corpus Christi Jan. 5, 2012, no pet. h.)

(mem. op., not designated for publication) (stating that complainant’s testimony

about defendant being on top of her when she awoke supported a finding that he

began the sexual assault while she slept, without her consent); Mauldin v. State,

No. 05-09-00513-CR, 2010 WL 936695, at *4 (Tex. App.—Dallas Mar. 17, 2010,

pet. ref’d) (not designated for publication) (stating that the jury was entitled to

conclude that complainant did not consent when she testified that she did not

consent to any sexual act with appellant, that she blacked out several times

                                        17
during the evening because of the amount of alcohol she had consumed—which

was consistent with her elevated blood alcohol level hours later—and that she

awoke at one point to find appellant on top of her with his penis inside of her,

despite appellant’s conflicting testimony that she consented, never appeared to

be intoxicated, and never passed out that night); Hughes v. State, 194 S.W.3d

649, 654 (Tex. App.—Tyler 2006, no pet.) (stating that the evidence was

sufficient to show lack of consent when, among other things, appellant

commenced sexual abuse while the complainant slept); Taulung v. State, 979

S.W.2d 854, 855, 857–58 (Tex. App.—Waco 1998, no pet.) (finding evidence

sufficient to support sexual assault conviction when, among other things,

complainant testified that she awoke to find defendant on top of her, engaging in

sexual intercourse with her, before she pushed him away and yelled that

defendant had raped her).

                                IV. Conclusion

      Having overruled Anderson’s sole point, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 12, 2012




                                       18
