
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





ON MOTION FOR REHEARING







NO. 03-03-00030-CR


David Wayne Casey, Jr., Appellant

v.


The State of Texas, Appellee







FROM THE CRIMINAL DISTRICT COURT OF DALLAS COUNTY

NO. F-0036978-SH, HONORABLE JANICE L. WARDER, JUDGE PRESIDING



O P I N I O N

The opinion and judgment dated December 2, 2004, are withdrawn.  The State's
motion for rehearing is overruled.
Appellant David Wayne Casey, Jr., and codefendant Scott Cannon were jointly tried
for sexual assault aggravated by the administration of gamma hydroxybutyrate (GHB), a "date rape"
drug.  See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i), (2)(A)(vi) (West Supp. 2004-05).  The jury
found Cannon not guilty and convicted appellant of the lesser included offense of sexual assault, for
which it assessed a twenty-year prison term.  See id. § 22.011(a)(1)(A).  We hold that the evidence
is legally and factually sufficient to sustain the jury's verdict, but that the trial court erred by
admitting certain photographs in evidence and by commenting on the weight of the evidence in its
jury charge.  We will reverse the conviction and remand for a new trial.

Background
The complainant, K.T., was employed as a "shot girl" at a Dallas topless bar.  She
was at the bar on the night of April 24, 2000, but not working.  Around 7:30 p.m., she called
appellant, with whom she was acquainted, to ask what he was doing that night.  About two hours
later, appellant arrived at the club with his friend Cannon.  K.T., appellant, and Cannon remained
at the bar for an hour.  All three were drinking, but K.T. testified that she was not intoxicated. 
Appellant told K.T. that he and Cannon were planning to go to appellant's house to watch videos,
and he invited her to join them.  She accepted the invitation, and she followed in her own car as they
drove to appellant's house.
The three arrived at appellant's house at about 11:00 p.m. and were soon joined by
appellant's housemate, Jessie Diaz, who arrived with a female companion identified only as Brandy. 
K.T., appellant, and Cannon were drinking beer, but someone suggested that they drink shots. 
Leaving K.T. alone in the living room, the others went to the kitchen to prepare the shots.  K.T.
testified that by this time, she was beginning to feel uncomfortable and planned to leave at the first
opportunity.  The group returned from the kitchen and Diaz handed her a shot of vodka.  K.T. did
not care for vodka, but she decided to drink the shot and then leave.  Moments after drinking the
vodka, however, K.T. began to feel strange.  When she tried to stand, her vision became blurred and
she passed out.
K.T.'s memory of the next several hours was sketchy, as she drifted in and out of
consciousness.  She remembered vomiting and defecating on herself, and being moved from the
living room to the hallway.  She recalled people standing over her and hearing appellant and Cannon
discuss what to do with her.  At one point, she became aware that she was naked and that appellant
was between her legs penetrating her with his penis.  Cannon was walking back and forth, as if he
had a camcorder.  K.T. testified that she also remembered Cannon penetrating her while appellant
watched.  She recalled flashes that caused her to squint her eyes.
K.T. regained full consciousness at 4:30 a.m.  She was naked and lying on the floor
of appellant's bedroom.  She went to the bathroom, which woke up appellant.  He told her that she
had thrown up on herself and that he had washed her clothes.  Her shirt was still wet, so she
borrowed a shirt from appellant.  K.T. got dressed and left the house.  She saw no one else there.
K.T. testified that she still felt sick and "foggy."  She managed to drive to Chris
Nunn's house.  Nunn was K.T.'s on-again, off-again boyfriend.  Nunn had introduced K.T. to
appellant and Cannon, but had later advised her to avoid them.  K.T. had been told by appellant that
Nunn called while she was asleep and knew that she spent the night at appellant's house.  K.T. told
Nunn what had happened to her.  Nunn called the police and then drove K.T. to Parkland Hospital. 
Semen recovered during K.T.'s physical examination contained appellant's DNA.  No DNA link to
Cannon was found.  No trace of GHB was found in K.T.'s blood or urine, but a toxicologist testified
that the drug has a half-life in the body of only twenty minutes to an hour.
A warrant to search appellant's house was executed on June 25, 2000, the day after
the alleged assault.  A soft drink bottle containing sixty-four grams of a liquid identified as GHB was
found in the refrigerator's freezer compartment.  A Polaroid camera and four Polaroid photographs
of K.T. were found in the kitchen.  One of these photographs shows K.T. lying naked in the hallway,
and the others are closeups of K.T.'s vaginal area.  Two 35 mm. cameras were found in Diaz's
bedroom.  One of these cameras contained exposed film that, when developed, showed:  (1)
photographs of an unidentified, naked woman; (2) photographs of Cannon vomiting; (3) a
photograph of Diaz having sexual intercourse with an unidentified woman; (4) a photograph of
appellant making a hand sign and another showing him urinating; and (5) photographs of Cannon
lying on a bed with an unidentified naked woman and an unidentified man.  No camcorder was found
in the house.
Cannon testified in his own behalf.  He said that K.T. had been "very friendly" with
appellant at the bar, sitting next to him and resting her hand on his shoulder.  When they arrived at
appellant's residence, Cannon noticed that K.T. took a soda bottle with her into the house.  K.T. sat
next to appellant on the couch as they watched videos.  According to Cannon, "They were touching,
feeling, just kind of half kissing type thing."  Diaz and his companion arrived, and Diaz later poured
shots of vodka for everyone.  K.T. drank her shot with no apparent ill effects, but she did appear to
be "kind of buzzed" and she "became more aggressively touching and feeling."  After about an hour,
appellant and K.T. went to appellant's bedroom.
Cannon testified that he was too intoxicated to drive, so he decided to spend the night
in appellant's spare bedroom.  As he passed the half-opened door to appellant's bedroom, he saw
appellant and K.T. embracing.  Cannon said he was awakened in the middle of the night by the
sound of K.T. vomiting in the hall.  Cannon wiped the vomit from K.T.'s face with a towel, then
woke appellant, told him to take care of K.T., and went back to bed.  Cannon testified that he did not
take any photographs or videos of K.T., and that he did not see anyone else do so.  He denied
touching K.T. "in any sexual way."

Sufficiency of the Evidence

When the sufficiency of the evidence to sustain a criminal conviction is challenged,
we must determine whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal
sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency);
Zuniga v. State, 144 S.W.2d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency).  In a legal
sufficiency review, we look at all the evidence in the light most favorable to the verdict and assume
that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable
inferences in a manner that supports the verdict.  Griffin, 614 S.W.2d at 159 (citing Jackson, 443
U.S. at 318-19).  In a factual sufficiency review, we look at the evidence in a neutral light and
consider the testimony of defense witnesses and the existence of alternative hypotheses.  Orona v.
State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.).  Although due deference still must
be accorded the fact finder's determinations, particularly those concerning the weight and credibility
of the evidence, we may disagree with the result in order to prevent a manifest injustice.  Johnson
v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).  The evidence will be deemed factually insufficient
to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too strong to
support a finding of guilt beyond a reasonable doubt.  Zuniga, 144 S.W.3d at 484-85; see Johnson,
23 S.W.3d at 11.
Appellant argues that because the jury did not convict him of aggravated sexual
assault, the jury necessarily found that he did not administer GHB to K.T.  He then asserts without
citation of authority that "if K.T. really was under the influence of GHB, she voluntarily ingested it,
and the automatic statutory consent element is eliminated."  But as the jury was correctly instructed
by the trial court, a sexual assault is without consent if the other person has not consented and the
actor knows the other person is unconscious or physically unable to resist.  Tex. Pen. Code Ann.
§ 22.011(b)(3).  Under section 22.011(b)(3), sexual intercourse is without consent when assent in
fact is not given and the actor knows that the victim's impairment is such that resistance is not
reasonably to be expected.  Elliott v. State, 858 S.W.2d 478, 485 (Tex. Crim. App. 1993).  In Elliott,
the evidence was held sufficient to prove lack of consent where the victim of the sexual assault was
unconscious due to voluntary intoxication.  Id.
Appellant also urges that K.T. had a motive to lie about her conduct on the night in
question.  He points to K.T.'s testimony that she and Nunn had been dating for some time, that
marriage had been discussed, and that she still loved Nunn even though they had broken up.  K.T.
acknowledged during cross-examination that Nunn "wouldn't be happy" if he learned that she had
sexual intercourse with appellant.  Appellant suggests that K.T. falsely accused him of assaulting her
in order to preserve her hopes of reuniting with Nunn.  The jury, however, is the exclusive judge of
the credibility of the witnesses and the weight to be given their testimony.  See Tex. Code Crim.
Proc. Ann. art. 38.04 (West 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984);
Castellano v. State, 810 S.W.2d 800, 807 (Tex. App.--Austin 1991, no pet.).  Due deference must
be given to the jury's decision to credit K.T.'s testimony insofar as she denied consenting to sexual
intercourse with appellant.
Viewing the evidence in the light most favorable to the verdict, we hold that the jury
could rationally find beyond a reasonable doubt that appellant had sexual intercourse with K.T.
without her consent in fact and when he knew that K.T. was unconscious or physically unable to
resist.  We further hold that the jury's verdict is not manifestly unjust even when all the evidence,
including Cannon's defensive testimony, is considered in a neutral light.  A decision is not
manifestly unjust merely because the fact-finder resolved conflicting views of the evidence in the
State's favor.  Roise v. State, 7 S.W.3d 225, 233 (Tex. App.--Austin 1999, pet. ref'd).  Point of error
three is overruled.

Photographs
In his first point of error, appellant contends that twenty-seven photographs were
erroneously admitted in evidence.  Appellant argues that no foundation was laid for the photographs,
they were not properly authenticated, most of them had no relevance other than to prove character
conformity, and the danger of unfair prejudice arising from the admission of the photographs
substantially outweighed any probative value they might have had.  See Tex. R. Evid. 403, 404(b),
901.  The State's brief does not specifically address the admissibility of any of the photographs in
question.  Instead, the State broadly asserts that all the photographs were properly admitted to prove
the manner, means, and circumstances of the alleged offense.
The trial court's decision to admit or exclude evidence is reviewed for an abuse of
discretion.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).  As
a general rule, a photograph is admissible if it is relevant to a material issue and is an accurate
representation of its subject as of a given time.  DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim.
App. 1986).
The requirement of authentication as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its proponent claims. 
Tex. R. Evid. 901(a).  A photograph may be authenticated by any witness who has personal
knowledge that it accurately represents the scene or event it purports to portray.  Kephart v. State,
875 S.W.2d 319, 321 (Tex. Crim. App. 1994); Drone v. State, 906 S.W.2d 608, 611 (Tex.
App.--Austin 1995, pet. ref'd).
Evidence of other crimes, wrongs, or acts is not admissible to prove the defendant's
character in order to show action in conformity to that character.  Tex. R. Evid. 404(b).  This rule
incorporates the fundamental tenet of our criminal justice system that an accused may be tried only
for the offense of which he is accused and not for his criminal propensities.  Rankin v. State, 974
S.W.2d 707, 718 (Tex. Crim. App. 1996).  A defendant may not be tried for some collateral crime
or for being a criminal generally.  Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983).
Relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.  Tex. R. Evid. 403.  Evidence is unfairly prejudicial when it has
an undue tendency to suggest that a decision be made on an improper basis, commonly, but not
necessarily, an emotional one.  Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). 
Factors that should be considered in applying rule 403 are the probative value of the evidence, the
potential of the evidence to impress the jury in some irrational way, the time needed to develop the
evidence, and the proponent's need for the evidence.  Montgomery, 810 S.W.2d at 389-90.  In the
context of the admission of photographs, courts also consider the number of photographs, their size
and detail, whether they are in color or black-and-white, whether they are gruesome, and whether
any bodies are clothed, naked, or altered by autopsy.  Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.
Crim. App. 1992).

State's exhibits 13, 14, and 15
During the search of appellant's house, police found four Polaroid photographs in the
kitchen.  One of these photographs, State's exhibit 16, shows K.T. lying unconscious on the floor
in the hallway of the house.  She is naked, and there is a towel next to her head.  Appellant does not
complain of the admission of this photograph, to which there was no trial objection.  The other three
Polaroid photographs are close-ups of a woman's genital area.  K.T. identified the photographs as
"[m]y clitoris and pretty much my vagina."  Eight-by-eight enlargements of these three photographs
were admitted as State's exhibits 13, 14, and 15. (1)
Appellant concedes that these photographs were identified by K.T.  Nevertheless, he
contends that a proper foundation was not laid for the exhibits because they were not connected to
him.  That is, there is no evidence that appellant took the photographs or knew that they were made. 
Appellant also urges that any probative value these photographs may have had was outweighed by
their unfairly prejudicial nature. (2)
K.T.'s testimony regarding her memory of a camcorder and flashes suggested that she
was photographed on the night in question.  It is reasonable to conclude that exhibits 13, 14, and 15
were taken at or about the time exhibit 16 was taken.  Evidence that K.T. was photographed while
she was naked and unconscious was essential to understanding the context and circumstances of the
alleged assault.  It was, in other words, same transaction contextual evidence.  See Camacho v. State,
864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Mayes v. State, 816 S.W.2d 79, 86 n.4 (Tex. Crim.
App. 1991).  Although there is no evidence that appellant personally took the photographs in
question, they were found in open view in his kitchen on the day after the offense and thus tended
to confirm K.T.'s testimony.  The trial court did not abuse its discretion by concluding that an
adequate foundation for admission of the photographs was laid and that the photographs were
relevant.  Although the close-up photographs of K.T.'s genitals were tasteless and the introduction
of all three photographs was repetitive, we cannot state under the circumstances that the trial court
abused its discretion by concluding that the probative value of the photographs outweighed the
danger of unfair prejudice.

State's exhibits 71 through 76 and 78
The other photographs at issue were on a roll of film taken from a 35 mm. camera
found in Diaz's bedroom.  Exhibits 74, 75, and 76 show a young woman lying naked on a couch or
bed.  She appears to be asleep or unconscious.  Exhibit 71 is a close-up of the woman's genitals.  In
exhibit 72, a man is inserting a long object into the woman's vagina.  In exhibit 73, the same man
is pushing a drink can into the woman's vagina.  In exhibit 78, a different man is performing
cunnilingus on the woman.  There is no evidence regarding the identities of the woman and men
shown in these photographs.  There also is no evidence as to where, when, or by whom these
photographs were taken, although there is indirect evidence (discussed below) that the photographs
were recent.  Comments made during a hearing on the admissibility of the photographs suggest that
they were taken in Diaz's bedroom.
At trial, the State argued that these photographs were admissible to "show the
motivation, to keep a photograph of a woman who is naked and who they are sexually assaulting." 
The court admitted the photographs without specifying a ground.  The court did state that the
photographs show "what appears to be an unconscious girl being sexually abused in the Defendant's
house," that they "appear to have been taken in Jessie Diaz' room who was there at the time of the
offense that we were [sic] trying," and that they "are of a similar nature" to the Polaroid photographs
of K.T. previously admitted in evidence.  We infer that the court determined that these photographs
were admissible to prove that appellant and his codefendant administered GHB to K.T. or, as the
State argued, to prove their motive for having done so.
Evidence that appellant or Cannon had drugged and sexually assaulted another
woman was not admissible under rule 404(b) solely to prove a propensity for such conduct. 
Moreover, there is no evidence that these photographs are what the State claimed them to
be--photographs of a woman who had been drugged by appellant or Cannon, and then sexually
assaulted.  See Tex. R. Evid. 901(a).  Even if it is assumed that these photographs were not posed
and the woman pictured is unconscious, there is no evidence that she had been given GHB or any
other drug, nor is there any evidence that either appellant or Cannon were in any way responsible for
her intoxication.  And even if the photographs were taken in Diaz's bedroom in appellant's house,
there is no evidence that either appellant or Cannon took the photographs or knew of their existence. 
Thus, the photographs were not probative evidence that either appellant or Cannon had drugged K.T.
for the purpose of making sexually explicit photographs of her.
These photographs, particularly those showing the man inserting objects into the
woman's vagina, are lewd, vulgar, and disgusting.  Remarks by the court during the trial show that
the photographs elicited a strong, negative, emotional reaction among the jurors.  Because the
photographs had no relevance beyond proving the bad character of the unidentified men in the
photographs and of the unidentified person who took them, we must conclude that the probative
value of the photographs was far exceeded by the danger of unfair prejudice and that the trial court
abused its discretion by overruling appellant's rule 403 objection.

State's exhibits 77 and 82 through 97
The remaining photographs found on the exposed roll of film were introduced as
State's exhibits 77 and 82 through 97.  Exhibit 77 was identified as a photograph of Diaz having
sexual intercourse with an unidentified woman, probably in Diaz's bedroom.  There is no evidence
as to when or by whom the photograph was taken.
Exhibits 82 through 92 are photographs of Cannon taken in a parking lot or driveway,
perhaps outside appellant's house.  Diaz also appears in one of the photographs.  Cannon is
obviously ill, and in most of the photographs he is sitting, lying, or crawling on the ground.  Some
of the photographs show him vomiting.  Cannon testified that he believed that these photographs
were taken on the night of his birthday in October 1999, when he became very intoxicated and ill. 
The photographer was not identified.
Exhibits 95, 96, and 97 show Cannon lying in a bed.  The record suggests that the
location was probably Diaz's bedroom.  Cannon is wearing only his underwear.  Another man is also
on the bed, and a woman is lying between the two men.  The woman is naked and is deliberately
exposing her vagina for the camera.  Cannon testified that the woman was a dancer named Crystal;
the other man he identified only as Adrian.  Cannon believed that these photographs were also taken
on the night of his birthday, while he was intoxicated.  Once again, there is no evidence as to who
took the photographs.
Exhibits 93 and 94 are photographs of appellant.  In exhibit 93, he is shown standing
in his kitchen making a hand gesture that was described as a gang sign.  In exhibit 94, appellant is
urinating on the side of a building, perhaps his house.  There is no evidence as to when or by whom
the photographs were taken.
These seventeen photographs were offered and admitted as a group.  The State urged
their admission on the ground that they connected appellant and Cannon to the photographs of the
unconscious woman that had previously been introduced as exhibits 71 through 76 and 78, and to
show when the latter photographs had been taken.  The State reasoned that because the photographs
of the unconscious woman were the last exposures on the roll, they must have been made recently
because in the proffered photographs appellant and Cannon appeared much the same as they did at
trial.  The court ruled that the photographs were admissible to show appellant's and Cannon's
"knowledge of what is on the roll of film" and to show the relationship between appellant, Cannon,
and Diaz.
The sequence of the photographs on the roll of film may show that the photographs
of the unconscious woman were recent.  But the mere fact that photographs of appellant and Cannon
were on the same roll of film does not tend to prove that either appellant or Cannon was aware of
the photographs of the unconscious woman or to connect either of them to the activities depicted in
those photographs.  The fact that Cannon and Diaz are both in one of the photographs does not tend
to prove that appellant took that photograph, much less that he took any of the other photographs on
the roll of film.
Aside from the one photograph of Cannon and Diaz together, these photographs are
not probative of the relationship between appellant, Cannon, and Diaz.  In any event, that
relationship was not a contested issue at the trial.  The evidence was undisputed that appellant and
Cannon were friends, that Diaz was appellant's housemate, and that appellant, Cannon, and Diaz
were at the house with K.T. on the night in question.
Proof of the events depicted in these seventeen photographs--Diaz having sexual
intercourse, Cannon intoxicated and vomiting, Cannon in bed with an obviously consenting woman,
appellant urinating against a wall and flashing a gang sign--did not have any tendency to make the
existence of a fact of consequence in this cause more or less probable.  See Tex. R. Evid. 401.  The
admission of these photographs improperly encouraged the jury to convict appellant on the basis of
his, his codefendant's, and his housemate's debauched character.  The admission of the exhibits was
an abuse of the trial court's discretion.  See Tex. R. Evid. 403, 404(b).

Harm
The State argues that any error in the admission of the challenged photographs was
harmless.  In fact, the State asserts that "the defense used these exhibits to its advantage" by
"offering evidence that the photographs were merely indicative of the decadent lifestyle in which
[K.T.] participated."  This is a reference to testimony by a defense witness that the use of GHB is
common among persons who work at topless bars, that such persons often "party" in the manner
shown in the photographs, and that she had seen similar photographs of persons in the "industry." 
The State also notes that in their arguments to the jury, defense counsel sought to minimize the effect
of the photographs by suggesting that the photographs showed the morals of all the principals in this
case, including K.T.  Defense counsel had no choice but to deal with these exhibits after they were
admitted over their objections.  We are not persuaded that efforts by the defense to suggest that K.T.
took part in the "decadent lifestyle" depicted in the exhibits lessened the harm to appellant arising
from their erroneous admission.
The State further argues that Cannon's acquittal and appellant's conviction for the
lesser included offense demonstrate that the jury was not affected by the objectionable photographs. 
While it is impossible to state with certainty why the jury returned these verdicts, the likely reason
for Cannon's acquittal was the absence of DNA or any other physical evidence linking him to the
alleged offense.  Whatever the jury may have thought of Cannon's character as suggested by the
photographs, it was apparently not prepared to convict him solely on the basis of K.T.'s admittedly
vague memory.  The jury's failure to find that appellant administered GHB to K.T. may possibly be
explained by the absence of the drug in her blood or urine, or the jury may have believed that K.T.'s
intoxication--whether by GHB or some other intoxicant--was voluntary.  The prejudice to appellant
arising from the inadmissible photographs went to the consent issue:  by improperly suggesting that
he was the sort of person who would take sexual advantage of an intoxicated woman, the
photographs likely removed any doubt the jury might have had as to whether K.T. consented to
sexual intercourse with appellant.
Given the number and nature of the photographs, the absence of any probative value
beyond character conformity, and the very real danger of unfair prejudice under the circumstances
shown by the record, we hold that the erroneous admission of State's exhibits 71 through 78 and 82
through 97 affected appellant's substantial rights.  Tex. R. App. P. 44.2(b).  Point of error one is
sustained in part.

Jury Charge

In point of error two, appellant contends the trial court erroneously commented on
the weight of the evidence in its jury charge.  See Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp.
2004-05).  The complained-of error occurred in the application paragraph for aggravated sexual
assault, in which the court instructed the jury:

Now if you find from the evidence beyond a reasonable doubt that . . .
[appellant], acting alone or as a party, did . . . knowingly or intentionally cause
penetration of the female sexual organ of [K.T.], without the consent of [K.T.], by
. . . the sexual organ of [appellant], and [appellant], acting alone or as a party, did
administer or provide a drug, namely:  [GHB] to [K.T.], the victim of the offense,
with the intent of facilitating the commission of the offense, then you will find the
defendant guilty of aggravated sexual assault, as charged in the indictment.


(Emphasis added).  Appellant's objection to the emphasized phrase was overruled.  The charge went
on to instruct the jury that if it found appellant not guilty of aggravated sexual assault, it was to
consider whether he was guilty of sexual assault.  The charge contained a second application
paragraph for the lesser offense.
A charge that assumes the truth of a controverted issue is a comment on the weight
of the evidence and is erroneous.  Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). 
There were two seriously controverted issues in this cause:  did K.T. consent to sexual intercourse
with appellant and did appellant administer GHB to K.T.  Appellant contends that the application
paragraph, by referring to K.T. as the victim, erroneously assumed that K.T. did not consent to the
intercourse.  Talkington v. State, 682 S.W.2d 674, 675 (Tex. App.--Eastland 1984, pet. ref'd).
The State argues that Talkington is distinguishable because the only contested issue
in that case was consent.  Here, the jury had to decide both the consent issue and the drug issue.  The
State argues that the application paragraph was structured in such a way as to require the jury to find
a lack of consent to sexual intercourse before it determined whether the drug had been administered,
and points out that the reference to K.T. as the victim occurred in that portion of the application
paragraph dealing with the latter issue.  The State reasons that before reaching that point in the
application paragraph, the jury would have already found that K.T. was the victim of a sexual
assault, and therefore the reference to her as a victim was not error.
In determining whether an instruction is a comment on the weight of the evidence,
we must consider the court's charge as a whole.  Russell v. State, 749 S.W.2d 77, 79 (Tex. Crim.
App. 1988).  The State's argument ignores the fact that the charge contained two separate application
paragraphs.  The first, at issue here, only asked the jury to decide whether appellant was guilty of
aggravated sexual assault.  The second, to be reached if the jury found appellant not guilty of the
greater offense, asked the jury to decide whether appellant was guilty of sexual assault.  By the time
the jury reached this second application paragraph, which it clearly did because it found appellant
guilty of the lesser included offense, it had been effectively instructed by the court that K.T. was the
victim of a sexual assault.
The State also argues that referring to K.T. in the charge as the "victim of the offense"
was required by the express terms of the aggravated sexual assault statute, which provides that a
sexual assault is aggravated if the actor administers GHB or other drugs "to the victim of the offense
with the intent of facilitating the commission of the offense."  Tex. Pen. Code Ann.
§ 22.021(a)(2)(A)(vi).  But the word "victim" is used throughout subsection 22.021(a)(2)(A) simply
to refer to the person sexually assaulted.  We do not understand the statute to require an express jury
finding that the person assaulted was a "victim," but only to require that the person drugged be the
person sexually assaulted.  If the application paragraph had required the jury to find that appellant
administered GHB to K.T. with the requisite intent, without referring to K.T. as "the victim of the
offense," it would have conformed to the statute without commenting on the weight of the evidence.
We hold that the trial court's charge commented on the weight of the evidence and
that appellant's objection was erroneously overruled.  The charge error was clearly calculated to
injure appellant's rights and was therefore harmful.  See Tex. Code Crim. Proc. Ann. art. 36.19
(West 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).  Point
of error two is sustained.

Conclusion

Because of our disposition of points of error one, two, and three, we do not reach
appellant's remaining points of error.  The judgment of conviction is reversed and the cause is
remanded to the district court for a new trial.


				___________________________________________
				David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Reversed and Remanded
Filed:   March 10, 2005
Publish
1.        The appellate record contains black-and-white photocopies of all the photographic exhibits. 
It is otherwise clear from the record that the actual exhibits were in color.
2.        Appellant does not challenge the admissibility of these three photographs under rule 404(b).

