      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00085-CR



                                     Max Elliott Ray, Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-11-300233, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Max Elliott Ray was charged with sexually assaulting J.G. by penetrating her sexual

organ with his finger and with his mouth without her consent. See Tex. Penal Code § 22.011(a)(1).

At the conclusion of the trial, the jury found Ray guilty and imposed a punishment of 6 years’

imprisonment. See id. § 22.011(f) (stating that offense is second-degree felony); id. § 12.33 (setting

out permissible punishment ranges for second-degree felony). Shortly after his punishment was

assessed, Ray appealed his conviction. We will affirm Ray’s conviction but remand the case for a

new punishment hearing.


                                            DISCUSSION

                In two issues on appeal, Ray challenges the district court’s judgment. First, Ray

contends that his trial attorney provided ineffective assistance of counsel during the punishment portion

of the trial. Second, Ray argues that the evidence was legally insufficient to support his conviction.
Ineffective Assistance of Counsel

               As mentioned above, in his first issue, Ray urges that his trial attorney did not provide

effective assistance of counsel during the punishment portion of the trial. For that reason, Ray asks

this Court to sustain his first issue and to remand the case for a new punishment hearing.

               In order to succeed on an ineffectiveness claim, a defendant must show that his

attorney’s “representation fell below an objective standard of reasonableness . . . under prevailing

professional norms” and that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 688, 694 (1984). When presenting an ineffectiveness claim, the defendant has the burden of

overcoming the presumption that his “counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. Generally speaking, decisions regarding effectiveness must be

based on the totality of the representation, see Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim.

App. 2013) (noting that defendants are not entitled to error-free representation), and a direct appeal

does not provide a useful way to present an ineffectiveness claim because the record for that type of

claim is usually undeveloped, Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

However, a single error can render the representation ineffective if it “was egregious and had a

seriously deleterious impact on the balance of the representation.” Frangias, 392 S.W.3d at 653;

see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (explaining that even in

circumstances in which attorney has not been given opportunity to clarify actions, courts may

conclude that performance was ineffective if challenged conduct is “so outrageous that no

competent attorney would have engaged in it”).



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                During the punishment phase, one of the issues in dispute was whether Ray was

eligible for community supervision. Under the Code of Criminal Procedure, a jury who has sentenced

a defendant to prison may “recommend to the judge that the judge suspend the imposition of the

sentence and place the defendant on community supervision,” and a judge is required to “place the

defendant on community supervision if the jury makes that recommendation in the verdict.” Tex.

Code Crim. Proc. art. 42.12, § 4(a); see also id. § 3g(a)(1)(H) (stating that general provision

authorizing trial judge to set sentence aside and impose community supervision does not apply when

defendant is convicted of crime of sexual assault). However, in order to be eligible for community

supervision, certain statutory criteria must be met. Id. § 4(d). Of relevance to this case, the defendant

must “file a sworn motion” “before the trial begins” stating “that the defendant has not previously

been convicted of a felony in this or any other state,” and the jury must enter a finding in the verdict

“that the information in the defendant’s motion is true.” Id. § 4(d)(3), (e). Moreover, a defendant

does not have to testify in order to establish his eligibility for community supervision, and his

eligibility may be established by the testimony of others with personal knowledge relevant to the

issue. See Mansfield v. State, 306 S.W.3d 773, 775-76 (Tex. Crim. App. 2010).

                In this case, Ray’s attorney did not file before trial a sworn statement establishing

Ray’s eligibility for community supervision; instead, Ray’s attorney untimely filed an unsworn

statement at the end of the guilt phase of the trial that requested community supervision but did

not state that Ray had not been convicted of a felony in another state. See Tex. Code Crim. Proc.

art. 42.12, § 4(e). Moreover, although Ray’s counsel called 2 witnesses to testify about, among

other topics, Ray’s ability to comply with the general requirements of community supervision, his



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attorney did not ask any of the witnesses questions regarding whether Ray was eligible for

community supervision. Further, after the second witness finished testifying, Ray’s attorney stated

that the defense was resting, and the district court convened a bench conference, asked him whether

he was asking for community supervision because “it has not yet been proven up,” and informed

him that Ray’s eligibility for community supervision could still be established by testimony from

someone who has personal knowledge of the matter.

                Shortly after the end of the bench conference, Ray’s attorney elected to call Ray to

the stand to establish his eligibility. During his testimony, Ray did testify that he had no felony

history, but during his cross-examination, Ray repeatedly stated that he believed that J.G. had

consented. In light of this testimony, the State argued during its closing that Ray “talked his way out

of [community supervision]. I imagine each and every one of you thought about it yesterday, that

this may be a case that is worthy of probation. Why not? He is young, he served in the military. But

then you heard him.”

                In its brief, the State agrees with Ray and urges this Court to sustain Ray’s first issue.

In particular, the State argues that “it is clear from the record that trial counsel’s failure” to timely

file a motion for community supervision and decision to rest its case during punishment without

establishing Ray’s eligibility “could in no way be considered trial strategy.” Further, the State asserts

that Ray’s attorney compounded these errors “by failing to be prepared with a witness able to testify

to [Ray]’s eligibility.” Moreover, the State contends that Ray’s attorney attempted to ameliorate

these mistakes by calling Ray to the stand but that Ray’s unprepared testimony “prejudiced [him]

by destroying what had, up to that point, been a reasonable chance for [him] to get probation.”



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               Based upon our review of the record, we agree with the State and with Ray that the

errors that occurred during the punishment phase were egregious and that there is a reasonable

probability that the result would have been different but for those errors. See Strickland, 466 U.S.

at 688, 694; Frangias, 392 S.W.3d at 653. Accordingly, we sustain Ray’s first issue on appeal.


Legal Sufficiency of the Evidence

               In his second issue, Ray contends that the evidence presented was legally insufficient

to support his conviction. Under the Penal Code, an individual commits sexual assault if he

“intentionally or knowingly . . . causes the penetration of the anus or sexual organ of another

person by any means, without that person’s consent.” Tex. Penal Code § 22.011(a)(1). Moreover,

the Penal Code explains that the “without consent” element is satisfied if “the other person has not

consented and the actor knows the other person is unconscious or physically unable to resist.”

Id. § 22.011(b)(3); see Elliott v. State, 858 S.W.2d 478, 485 (Tex. Crim. App. 1993) (explaining that

if assent is not given and “actor knows that the victim’s physical impairment is such that resistance

is not reasonably to be expected, sexual intercourse is ‘without consent’”). When presenting this

issue, Ray does not contest the evidence showing that he performed the sexual acts alleged in the

indictment; instead, Ray limits his challenge by stating that the evidence was insufficient to show

that he knew that J.G. was unconscious or unable to physically resist.

               Under a legal-sufficiency review, appellate courts view the evidence in the light

most favorable to the verdict and 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 (1979). When performing this analysis, an appellate court must bear in mind that it is the

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factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable

inferences “from basic facts to ultimate facts.” Id. Moreover, appellate courts must “determine

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). Furthermore, appellate courts presume that conflicting

inferences were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007).

               The testimony presented during the trial established that Ray and J.G. were friends

as well as co-workers at a bar. At the time of the alleged assault, Ray was dating a woman named

Kathryn Bickert, and J.G. had a boyfriend. On the night in question, Ray and J.G. met at their work

to socialize with friends. Over the course of the evening, Ray and J.G. had several drinks. After a

few hours, Bickert met up with Ray and J.G. at the bar. Prior to leaving the bar, J.G. asked Ray and

Bickert if they would like to come to her house and play video games. Ray and Bickert agreed.

Because Ray and J.G. had been drinking, Bickert drove the 3 of them to J.G.’s home in Ray’s car.

Although they played video games once they arrived at J.G.’s home, J.G. eventually went upstairs

to go to sleep. After J.G. went to bed, Ray walked to J.G.’s room while Bickert continued to play

video games. When Bickert noticed that Ray had left the room, she went looking for him.

               In her testimony regarding these events, Bickert explained that she had never seen

J.G. that intoxicated before and that J.G. was stumbling and slurring her words. In addition, Bickert

related that after going to look for Ray, she found Ray in J.G.’s bedroom and saw him performing

oral sex on J.G. and using his finger to penetrate J.G. Further, Bickert stated that J.G. was undressed



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from the waist down, that she was not moving, that her arms appeared limp and placed along her

side, and that she was “making noise, but not a lot of it.” When describing the noises, Bickert said

that it sounded like a “don’t-wake-me-up type of thing.” Further, Bickert testified that it did not

appear to her that J.G. was engaging in a consensual sexual encounter. In addition, she related that

she started yelling at Ray, that they both left J.G.’s home shortly thereafter, that Ray drove her to her

car, and that Ray left after dropping her off.

                In addition to Bickert’s testimony, J.G. also testified regarding her recollection of

the events. In her testimony, J.G. stated that she went to her bedroom to go to sleep after becoming

very intoxicated. Further, she explained that she woke up to the sound of yelling coming from the

first floor of her house and that after the yelling stopped, she felt someone get on top of her and start

“poking at” her vagina. Moreover, she related that she attempted to roll over several times in an

effort to stop what was happening but eventually passed out again. In fact, she said that she was

only conscious at the time when she tried to roll over. Regarding the next morning, J.G. testified that

she woke up early, noticed that she was naked from the waist down, and felt sore in her vaginal area.

Further, she explained that when she went downstairs, she noticed Ray sleeping on the sofa but did

not see Bickert. J.G. also related that she asked Ray what had happened but that he immediately

gathered his stuff and left.

                Although Ray acknowledges the testimony summarized above, he points to the

testimony from the witnesses that he called during his defense who testified about events that they

observed before Ray, Bickert, and J.G. left the bar. Specifically, Ray called Darrel Anderson and

Keith Copeland who both explained that they saw Ray and J.G. flirting with each other at the bar,

and Copeland further testified that J.G. told him that she was “lonely.”

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                In addition to highlighting the testimony from his witnesses, Ray also attempts to

undermine the testimony of J.G. and Bickert. Regarding J.G., Ray points to testimony from his

witnesses explaining that J.G. appeared to be conscious and fully functioning at the bar even though

J.G. testified that she was “in a black-out state,” was “on autopilot,” and was unable to recall events

occurring at the bar “and a little bit at the house.” Furthermore, Ray notes that J.G. did not testify

that she needed any assistance throughout the evening, including going upstairs to her bedroom.

Accordingly, Ray contends that J.G. may have consented but forgotten and that even if J.G. was

unconscious at the time of the sexual encounter, she might have appeared conscious to him.

                Similarly, Ray attempts to discredit the testimony of Bickert by pointing to testimony

indicating that she was intoxicated during the relevant time and that she did not know whether J.G.

had told Ray earlier in the evening that she wanted to have sexual relations with him. Further, Ray

notes that Bickert did not call the police on the night in question and agreed to allow Ray to drive

her to her car. In addition, Ray highlights the portions of Bickert’s testimony in which she stated that

after she confronted Ray, he began to physically assault her and shot a gun when driving her home,

and he notes that no evidence was introduced showing that there were any reports made to the police

by neighbors regarding either the yelling or the gun shot. Moreover, Ray mentions the portion of

Bickert’s testimony in which she stated that she had previously pressed charges against someone she

was dating. Finally, Ray refers to testimony that Bickert gave before a grand jury in which she stated

that she “honestly didn’t know one way or the other” whether J.G. was enjoying the activity.1




       1
         When asked about this statement during trial, Bickert explained that she had “known since
the beginning that [J.G.] was unconscious and not moving when [she] saw her.”

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               However, in light of the evidence summarized above as well as the reasonable

inferences that the jury could have made from that evidence and given that the standard of review

for legal-sufficiency challenges obligates appellate courts to review the evidence in the light

most favorable to the verdict and to defer to the jury’s resolution of conflicts in the testimony, see

Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 16-17, we cannot

conclude that the evidence was legally insufficient to support Ray’s conviction, cf. Everson v. State,

No. 01-07-00510-CR, 2008 Tex. App. LEXIS 4834, at *14 (Tex. App.—Houston [1st Dist.]

June 26, 2009, pet. ref’d) (mem. op., not designated for publication) (explaining that evidence that

victim could not “remember whether she consented is not dispositive of her consent, nor does it

make the [victim]’s testimony of her nonconsent so weak” as to render it insufficient and noting that

decision is not unjust simply “because the fact-finder resolved conflicting views of the evidence

of the complainant’s nonconsent in the State’s favor”). Accordingly, we overrule Ray’s second

issue on appeal.


                                          CONCLUSION

               Having overruled Ray’s second issue on appeal, we affirm the portion of the district

court’s judgment convicting Ray. However, having sustained Ray’s first issue and found that he

was denied effective assistance of counsel during the punishment phase of the trial, we reverse the

portion of district court’s judgment regarding his punishment and remand the cause for a new

punishment hearing. See Tex. Code Crim. Proc. art. 44.29(b).




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                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed in Part; Reversed & Remanded in Part

Filed: August 26, 2014

Do Not Publish




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