                            NUMBER 13-10-233-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

RICHARD LEE MAYFIELD,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 275th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
               Before Justices Rodriguez, Vela, and Perkes
                  Memorandum Opinion by Justice Vela
      A jury found appellant, Richard Lee Mayfield, guilty of attempted sexual assault.

See TEX. PENAL CODE ANN. § 15.01(a) (West 2003); § 22.011(a)(1) (West Supp. 2010).
After finding appellant had two prior felony convictions,1 the jury assessed punishment at

fifty years' imprisonment. By three issues, appellant argues: (1) the evidence is legally

insufficient to support his conviction; (2) the trial court erred by failing to include the

elements of sexual assault in the application paragraph of the jury charge; and (3) the

indictment failed to allege the elements of sexual assault. We affirm.

                                    I. FACTUAL BACKGROUND

       In the morning of June 25, 2009, M.G. went to a Wal-Mart in Edinburg, Texas, and

after making a purchase, returned to her vehicle. While sitting in the driver's seat with

her door open, appellant, who was wearing a baseball cap pulled down low, lunged at

her. His upper body was inside her car, and she was pinned inside. She started

screaming; however, appellant grabbed her left leg and ran his hands up her leg, pulling

up her skirt at the same time. M.G. testified appellant's hands came to a stop "close to

the top of my leg right there in the groin." When appellant asked her, "Do you want to

f**k?," she said, "no" and continued screaming. She testified "it sounded like he was

laughing . . . like a demon possessed creature." She kicked him two or three times with

her high heels, and he ran away. As she backed up her car, she saw appellant "running

very quickly, sneaking, like kind of ducking," and then get into an old, white car with a

navy blue vinyl roof. As appellant drove away, she memorized his license-plate number

and gave it to the 9-1-1 operator.

       Shortly thereafter, the police determined the license-plate number was registered

to Richard L. Mayfield, whose address was 1014 South 10th Street, Apartment 1 in


       1
         The indictment's enhancement paragraphs alleged previous convictions for aggravated assault
and aggravated robbery.
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Edinburg. The police took M.G. to the apartment and allowed her to look at appellant.

She testified that even though appellant was not wearing a baseball cap, she "was 99.9

percent sure it was him." She testified that when appellant put on a cap, she told the

police officer: "That's him, but it's a different cap." When M.G. asked appellant if he

was the person who had just attacked her, he said: "No, I've never seen you before in

my life." When the prosecutor asked M.G. if his voice sounded like her assailant's voice,

she said, "Basically, yes, but not with that spooky tone that he used when he asked that

vulgar question." When the prosecutor asked M.G., "And [at] that time, [M.G.], were you

positive that the man that was before you was the same man who attacked you at the

Wal-Mart parking lot?," she said, "Yes, I was." During the guilt-innocence phase of

appellant's trial, M.G. identified appellant, who was seated in the courtroom, as the

person who attacked her in the Wal-Mart parking lot. When the prosecutor asked her,

"[D]o you believe you were going to be sexually assaulted that day?," she said, "Yes.

Because of the question that he asked me, and his hands on my leg it was obvious that he

wanted me, not my purse."

       On cross-examination, when defense counsel asked M.G., "Did this individual get

inside the car with you?", she said, "His upper body was inside the car, and his face was

right in front of mine." She said, "It was a surprise attack" and "I was looking mainly into

his eyes."

       Investigator Oscar Trevino testified that on the day of the incident, appellant

waived his Miranda warnings and gave a written statement about what had happened

earlier that day. In his statement, appellant stated, in relevant part, that:


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       This morning I went to the Wal-Mart in Edinburg on 107. I went there to
       buy some medicine for jock itch and athelete's [sic] foot. Before I could go
       inside the store I saw a lady walking out that looked like an ex-girlfriend of
       mine named Julie. She was wearing a long ankle length dress. I followed
       her to her car. She got inside the car and I went up to her and poked her on
       her side thinking that it was Julie. I called her by the name Julie and she
       got scared and kicked me. I got scared and left cause I didn't want to
       bother someone I didn't know. I was wearing a dark blue uniform with a
       name tag and a black cap. I left the parking lot and went home. I was
       driving my brother's car, a white 1993 Chrysler with a blue canvas top. The
       police showed up at my house and questioned me. By this time I had
       already taken off my uniform because I was going to shave and shower. I
       was going to leave. I had somewhere to go. They brought the same lady
       to look at me. She said that I looked somewhat like the person they were
       looking for. I denied being at Wal-Mart. I told the police that I had not
       been there because nothing happened. I just kept denying the accusation
       because I didn't do anything to her.

       Investigator Trevino testified that prior to taking appellant's statement, he

questioned appellant about what had happened. Investigator Trevino stated appellant

"denied ever being at Wal-Mart. He denied ever leaving his home. He denied having

any contact with any female, or anybody, whatsoever." Investigator Trevino also asked

appellant about "Julie, to make a comparison as to Julie and the victim to see if there was

any similarities between them. I asked him if he could give me her full name and address

and telephone number so I could get in contact with her and speak with her. . . ."

However, appellant did not provide any information about her except for her first name,

"Julie," and that she was a girlfriend "from way back when."           Investigator Trevino

explained that "I was hoping to get a hold of this lady to see if she looked exactly like the

victim to where there could have been a mistaken identity or something as to the effect of

what he was alleging here on his statement. But that didn't happen."




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       Defense counsel called Officer Jorge Gomez as a witness.              Officer Gomez

testified he recovered a navy blue shirt, a ball cap, a belt, and a pair of pants from the

apartment where appellant lived.         Defense counsel introduced these items into

evidence. The left pocket of the shirt had a tag, which stated "Richard." On the right

side, the shirt said, "Royal Freight Pharr, Texas."

       Appellant did not testify during the guilt-innocence phase of his trial.

                                       II. DISCUSSION

A. Sufficiency of the Evidence

       In issue one, appellant challenges the sufficiency of the evidence to support his

conviction.

       1. Standard of Review

       "When reviewing a case for legal sufficiency, we view all of 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." Winfrey v. State,

323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)).    Accordingly, "we '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.'" Id. at 879 (quoting Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)). "It has been said quite appropriately, that '[t]he appellate

scales are supposed to be weighted in favor of upholding a trial court's judgment of

conviction, and this weighting includes, for example, the highly deferential standard of


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review for legal-sufficiency claims.'" Id. (quoting Haynes v. State, 273 S.W.3d 183, 195

(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). "We

must therefore determine whether the evidence presented to the jury, viewed in the light

most favorable to the verdict, proves beyond a reasonable doubt that appellant"

committed the crime for which the jury found him guilty. See id. "It is the obligation and

responsibility of appellate courts 'to ensure that the evidence presented actually supports

a conclusion that the defendant committed the crime that was charged.'" Id. at 882

(quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). In addition,

"'[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that

evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d 114, 116

(Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State, 125

S.W.3d 436, 443 (Tex. Crim. App. 2002).

        A person commits the offense of sexual assault if the person intentionally or

knowingly (1) "causes the penetration of the anus or sexual organ of another person by

any means, without that person's consent," (2) "causes the penetration of the mouth of

another person by the sexual organ of the actor, without that person's consent," or (3)

"causes 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[.]"

TEX. PENAL CODE ANN. § 22.011(a)(1)(A)-(C). "A sexual assault under Subsection (a)(1)

is without the consent of the other person if: (1) the actor compels the other person to

submit or participate by the use of physical force or violence . . . ." Id. § 22.011(b)(1).

Section 15.01(a) of the penal code provides that "[a] person commits an offense [of


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criminal attempt] if, with specific intent to commit an offense, he does an act amounting to

more than mere preparation that tends but fails to effect the commission of the offense

intended." Id. § 15.01(a).

       2. Analysis

       The evidence supporting the verdict showed that: (1) while M.G. was sitting in her

car with the door open; (2) appellant, who was wearing a baseball cap pulled down low,

lunged at her, pinning her in the car; (3) appellant grabbed her left leg, which was outside

the car, and ran his hands up her leg, pulling up her skirt at the same time; (4) his hands

came to a stop close to the top of her leg near her groin; (5) appellant asked her, "Do you

want to f**k?"; (6) appellant was laughing like a demon-possessed creature; (7) when

M.G. kicked him two or three times with her high heels, he broke off the attack and fled the

scene; (8) in his written statement, appellant stated that while he was at Wal-Mart, he saw

a woman who looked like his ex-girlfriend and that when the woman got inside her car, he

"poked" her on the side, thinking it was his ex-girlfriend; and (9) M.G. identified appellant

as the person who attacked her.

       The contrary evidence showed that: (1) when M.G. asked appellant if he was the

person who had just attacked her, he said: "No, I've never seen you before in my life;"

(2) shortly after the incident, when a police officer arrived at appellant's apartment,

appellant told the officer he had not been to Wal-Mart earlier that day and that he had just

returned from work; (3) shortly after the incident, when M.G. identified appellant as her

attacker, he was not wearing a uniform; (4) video tape from a surveillance camera, which

recorded a view of the parking lot where M.G. claimed the incident occurred, did not show


                                             7
appellant assaulting M.G.; (5) no physical evidence connected appellant to the assault;

and (6) during his trial, appellant was wearing thick glasses; however, M.G. stated that the

person who assaulted her was not wearing glasses. In addition, appellant argues M.G.'s

testimony is not credible because:      (1) she did not report the incident to Wal-Mart

employees; (2) she hesitated before reporting the incident to the police; and (3) her

out-of-court identification of appellant as her attacker was unreliable.

       However, "a jury is permitted to believe or disbelieve any part of a witness'

testimony, including a defendant." Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim.

App. 1998). The jury found M.G.'s testimony to be credible, despite the fact that she

testified that appellant told her he had never seen her before. After viewing all of the

evidence in the light most favorable to the verdict, we hold a rational trier of fact could

have found beyond a reasonable doubt that appellant committed the offense of attempted

sexual assault of M.G. Issue one is overruled.

B. Jury Charge

       In issue two, appellant contends the trial court erred by failing to include the

elements of sexual assault in the application paragraph of the jury charge.            The

application paragraph stated:

              Now if you find from the evidence beyond a reasonable doubt that on
       or about JUNE 25, 2009, in Hidalgo County, Texas, the Defendant,
       RICHARD LEE MAYFIELD, did then and there, with the specific intent to
       commit the offense of sexual assault of [M.G.], do an act or acts, to-wit:
       restrain her, pull up her skirt and tell her "Do you want to fuck", which
       amounted to more than mere preparation that tended but failed to effect the
       commission of the offense intended, then you will find the Defendant,
       RICHARD LEE MAYFIELD, guilty of the offense of Attempted Sexual
       Assault as charged in the indictment.


                                             8
       Appellant asserts, without citing any authority, that the application paragraph was

defective for failing to set out the elements of sexual assault. In addition, he does not cite

any authority for the proposition that the application paragraph pertaining to an attempt to

commit an offense must include the elements of the offense which the defendant is

alleged to have intended to commit.        "The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this issue constitutes a

waiver of the argument. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000)

(stating that failure to cite relevant authority waives error). Issue two is overruled.

C. The Indictment

       In issue three, appellant contends the trial court erred by proceeding to trial on an

indictment that failed to allege the elements of a sexual assault. Appellant filed a motion

to quash the indictment; however, there is no indication in the record that he ever urged

this motion or that the trial court ever heard the motion. Because appellant did not obtain

a ruling on his motion, he has waived any error in the indictment. See Brosky v. State,

915 S.W.2d 120, 129 (Tex. App.—Fort Worth 1996, pet. ref'd) (holding that "[b]y failing to

obtain a ruling on the portions of the Motion to Quash pertaining to Count One of the

indictment, Brosky waived any error arising from Count One of the indictment."); Dowler

v. State, 777 S.W.2d 444, 448 (Tex. App.—El Paso 1989, pet. ref'd). Issue three is

overruled.




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                                     III. CONCLUSION

       We affirm the trial court's judgment.




                                                    ROSE VELA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
22nd day of November, 2011.




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