
Opinion issued October 30, 2003
     













In The
Court of Appeals
For The
First District of Texas




NO. 01-02-00926-CR




DANA WAYNE WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 787456




O P I N I O N

          A jury found appellant, Dana Wayne Washington, guilty of aggravated sexual
assault and assessed punishment at 36 years in prison.  Appellant appealed that
conviction to this Court, and we reversed the judgment and remanded the cause for
a new trial.
 See  Washington v. State, 16 S.W.3d 70 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d).  At the second trial, appellant was again found guilty by a jury, but
elected to have his punishment assessed by the court, rather than by the jury.  The trial
court found enhancement allegations of prior convictions for delivery of cocaine and
of simulated cocaine true and assessed punishment at 45 years in prison. 
          We determine (1) whether appellant had to preserve his factual-sufficiency
challenge, (2) whether the evidence was factually insufficient to support  appellant’s
conviction, and (3) whether the trial court’s imposition of a harsher punishment upon
the retrial was the result of presumptive vindictiveness.  We affirm.
Facts and Procedural History
          On June 22, 1998, S.L., the complainant, woke up around 9:00 a.m. and
lingered around her home, which she shared with her family.  She drank alcohol
throughout the day and left her home sometime after 10:30 p.m. to buy more alcohol. 
She walked to a local store, but it was closed.  At this point, S.L. encountered
appellant, who told her that his name was “Joe.”  S.L. told him that she planned to
buy alcohol.  Appellant offered her a ride in his car, and the two visited a nearby gas
station, where they ran into S.L.’s brother.   Because S.L. did not want to buy alcohol
in front of her brother, S.L. and appellant left to find another place at which to make
their purchases.  After the two had unsuccessfully visited a local night club, which
was closed, they decided to buy their alcohol from the local “bootleg.”
  Each
obtained alcohol from the bootleg.  
          Afterwards, S.L. told appellant that she wanted to go home.  She was under the
impression that appellant was driving her home because he was driving in the
direction of her home.  Appellant instead stopped at a house, which he told S.L. was
his mother’s house.  Both appellant and S.L. went inside.  While the two drank their
alcohol, S.L. told appellant that she wanted to go home, and appellant struck her with
his hand without provocation.  Appellant repeatedly said to S.L., “Bitch, do what I
say.”  S.L. claimed that appellant continued to hit her with his fists and ripped off her
clothing until she remained in only her undergarments.  Appellant then dragged her
by her hair out of the back of the house and into a small, unfurnished structure behind
the house.  Appellant continued to beat S.L., tried to separate her legs, and removed
her undergarments so that she was completely unclothed.  Appellant then removed
his clothing and penetrated S.L. with his penis.  Appellant pulled a knife, with which
he began to poke and to slice S.L. Appellant then forced S.L. to perform fellatio on
him.  Appellant told S.L. not to leave or he would shoot her.  Appellant then slept for
a few hours, and S.L. decided that it was safe to leave early in the morning.  S.L. ran
back into the house, retrieved her clothing, and walked home.    
          Several hours later, S.L. decided to contact the police, who came to her home
to investigate, to retrieve her clothing, and to take photographs and statements.  S.L.
had taken a bath before the officers’ arrival.  S.L. was interviewed by Houston Police
Officer Blades.  At trial, Officer Blades described S.L.’s demeanor as “shaken and
almost . . . in tears.”  Officer Blades also indicated that S.L.’s face was swollen, that
she had a “three-inch laceration” on her neck, and that she had bruises on her arms
and “puncture wounds” on her back.  Officer Blades surmised that S.L. had been
badly beaten, and S.L. told him that she had been raped.  S.L. told Officer Blades that
appellant’s name was “Joe” and described appellant to the officer.  After the police
had concluded their initial investigation, S.L. went to the hospital for an examination. 
          During this preliminary investigation, Officer Blades also questioned
appellant’s brother, who told Officer Blades that he was present in the house at the
time of the assault and that he was aware that a woman was present in the house with
appellant.
          At trial, S.L. testified that she did not know whether appellant had used a
condom during the alleged assault. S.L.’s brother testified that he had encountered
appellant and S.L. at the gas station on the night that the assault occurred.  S.L.’s
brother testified that, at the time that he encountered appellant and S.L. that night,
S.L. did not look as if she had been physically assaulted and her face had not yet been
lacerated or bruised.  
          Appellant called only one witness, Doctor John Arigbogu, the emergency room
physician who had treated S.L. on the day after the assault.  On direct examination,
Doctor Arigbogu testified that, because S.L. visited the hospital more than 18 hours
after the sexual assault, hospital policy precluded the administration of a rape kit. 
Doctor Arigbogu testified that he had conducted a pelvic examination on S.L. and
could not find evidence of trauma, but that he did observe facial trauma and skin
lesions on S.L.  Doctor Arigbogu further testified that S.L. had gonorrhea, but that,
due to the gestation period of gonorrhea, it had not been transmitted to her on the day
of the assault.  
Preservation of Error
          The State contends that appellant did not preserve his factual-sufficiency
challenge because he did not move for a directed verdict
 and because his motion for
new trial did not present a factual-sufficiency point of error with sufficient
particularity.  The State thus argues that, under Texas Rule of Appellate Procedure 
33.1(a)(1)(A), appellant has forfeited his factual-insufficiency challenge.  See Tex.
R. App. P. 33.1(a)(1)(A).
          The State relies on the recent amendment to Texas Rule of Appellate Procedure
33.1, which amendment added subsection (d) effective January 1, 2003.  Subsection
(d) states:
In a nonjury case, a complaint regarding the legal or factual insufficiency
of the evidence—including a complaint that the damages found by the
court are excessive or inadequate, as distinguished from a complaint that
the trial court erred in refusing to amend a fact finding or to make an
additional finding of fact—may be made for the first time on appeal in
the complaining party’s brief.
 
Tex. R. App. P. 33.1(d).
 
          The State claims that the Court of Criminal Appeals, by adopting this  provision
expressly exempting factual-sufficiency challenges in non-jury cases from the general
preservation rule, implicitly intended to subject factual-sufficiency challenges in jury
cases to the general preservation rule.  Assuming, without deciding, that Texas Rule
of Appellate Procedure 33.1(d) applies to this case, we hold that the Court of Criminal
Appeals did not intend, simply by adopting a rule affirmatively stating that  defendants
in non-jury cases are not required to preserve certain errors, to require criminal
defendants in jury cases to preserve error on insufficiency-of-the-evidence complaints. 
          Effective September 1, 1997, rule 33.1 took the place of former Texas Rule of
Appellate Procedure 52.  See former Tex. R. App. P. 52, 49 Tex. B.J. 573 (Tex. Crim.
App. 1986, superceded 1997) [hereinafter “former rule 52”].  Former rule 52 contained
subsection (d), which read as follows:
Necessity for Motion for New trial in Civil Cases.  A point in a motion
for new trial is prerequisite to appellate complaint in those instances
provided in Rule 324(b) of the Texas Rules of Civil Procedure.  A party
desiring to complain on appeal in a nonjury case that the evidence was
legally or factually insufficient to support a finding of fact, that a finding
of fact was established as a matter of law or was against the
overwhelming weight of the evidence, or of the inadequacy or
excessiveness of the damages found by the court shall not be required to
comply with paragraph (a) of this rule.
Former rule 52(d).           
          Texas Rule of Civil Procedure 324(b), referenced in former rule 52(d), makes
a motion for new trial a prerequisite to raising only the following appellate complaints:
(1)A complaint on which evidence must be heard such as one of jury
misconduct or newly discovered evidence or failure to set aside a
judgment by default;
 
(2)A complaint of factual insufficiency of the evidence to support a
jury finding;
 
(3)A complaint that a jury finding is against the overwhelming weight
of the evidence;
 
(4)A complaint of inadequacy or excessiveness of the damages found
by the jury;  or
 
(5)Incurable jury argument if not otherwise ruled on by the trial court.
 
Tex. R. Civ. P. 324(b)(1)-(5) (emphasis added).
          Former rule 52(d), by its own express terms and by reference to rule 324(b),
thus limited its requirement of preserving factual-sufficiency challenges by motion for
new trial only to litigants in civil cases having jury trials.
          The Court of Criminal Appeals replaced former rule 52 with rule 33, effective
September 1, 1997.  See Tex. R. App. P. 33, cmt.  The 1997 version of rule 33.1 did
not contain an equivalent to former rule 52(d).  Effective January 1, 2003, however,
the Court of Criminal Appeals again amended rule 33.1 to add subsection (d), which
is quoted above.  Rule 33.1(d)’s title (“Sufficiency of Evidence Complaints in Nonjury
Cases”) and text do not contain, as did former rule 52(d), either an express statement
that the subsection applies only to civil cases or a reference to civil procedure rule
324(b).  Based on rule 33.1(d)’s language, the State argues that the Court of Criminal
Appeals, by adopting this rule that expressly exempts factual-sufficiency challenges
in non-jury cases from the general preservation rule, implicitly intended to subject
factual-sufficiency challenges in criminal cases involving jury trials to the general
preservation rule.  We disagree.  
          First, the comment to rule 33.1 explains that “[t]he last sentence of former rule
52(d) of the Rules of Appellate Procedure has been reinstated in substance” by the
addition of subsection (d) to rule 33.1.  Tex. R. App. P. 33.1(d), cmt.  Former rule
52(d) concerned only civil cases.  This comment thus shows the Court of Criminal
Appeals’s intent to limit rule 33.1(d)’s application to civil cases.  Second, the example
given within rule 33.1(d) of the type of complaints for which preservation is no longer
required is one that could apply only to civil cases: excessive or inadequate damages. 
See Tex. R. App. P. 33.1(d) (giving such example).  Accordingly, we hold that rule
33.1(d) applies only to civil cases, not to criminal ones.
          The State alternatively argues that, even if rule 33.1(d) does not apply to
criminal cases, a defendant in a criminal case must nonetheless still preserve his
factual-sufficiency challenge by a motion for new trial.  In support, the State first notes
that the Court of Criminal Appeals has held only that legal-sufficiency challenges need
not be preserved, without having decided whether factual-sufficiency challenges must
be preserved.  See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001);
Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).  Citing Marin v. State,
the State argues that a legal-sufficiency challenge differs sufficiently from a factual-sufficiency challenge so that the reasons applicable to determining whether the former
has to be preserved do not apply to determining whether the latter must be preserved.
 
Based on Marin and for other reasons, the State also argues that the many courts of
appeals that have heretofore held that factual-sufficiency challenges need not be
preserved have erred.  See, e.g., Grayson v. State, 82 S.W.3d 357, 358-59 (Tex.
App.—Austin 2001, no pet.); Givens v. State, 26 S.W.3d 739, 741 (Tex.App.—Austin
2000, pet. ref’d); Davila v. State, 930 S.W.641, 648 (Tex.App.—El Paso 1996, pet.
ref’d).  We disagree, though we need not reach most of the State’s arguments.
          Another provision of the Texas Rules of Appellate Procedure requires our
conclusion.  Rule 21 concerns new trials in criminal cases.  See Tex. R. App. P. 21.1-21.9.  Rule 21.2, which became effective September 1, 1997
, provides that “[a]
motion for new trial is a prerequisite to presenting a point of error on appeal only
when necessary to adduce facts not in the record.”  See Tex. R. App. P. 21.2.  If it were
necessary to raise a factual-sufficiency challenge at trial, a motion for new trial would
be the only way that such a complaint could be raised.
  Yet rule 21.2 does not list a
factual-sufficiency challenge as one that must be preserved by a motion for new trial,
and a factual-sufficiency challenge is necessarily one limited to facts within the record. 
See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  Therefore, rule 21.2
shows the Court of Criminal Appeals’s clear intent to allow an appellant to challenge
the factual sufficiency of the evidence for the first time on appeal in a criminal case
tried to a court or to a jury.
 See Perez, 113 S.W.3d at 836 (explaining the
requirements for preservation of error in a criminal trial, as set out in rule 21.2); Orona
v. State, 836 S.W.2d 319, 320 n.1 (Tex. App.—Austin 1992, no writ) (comparing rule
21.2’s predecessor, former rule 30(a), to Texas Rule of Civil Procedure 324(b) in
holding that a motion for new trial is not a prerequisite for a factual-sufficiency point
of error in a criminal trial).  We reject the argument that the Court of Criminal Appeals
intended to limit rule 21.2’s clear language concerning preservation by adopting rule
33.1(d), whose language, at best, only indirectly supports the State’s position, and
which amendment simply resurrects a preservation rule applicable only to civil, non-jury cases.  We also note that, even after rule 33.1(d)’s addition, courts of appeals have
continued to hold that factual-sufficiency challenges need not be preserved following
a jury trial.  See Martin  v. State, 2003 WL 22203749 at *1 (Tex. App.—San Antonio
Sept. 24, 2003, no pet. h.) (not designated for publication); Perez, 113 S.W.3d at 836. 
We agree with these courts.
          Accordingly, we hold that a criminal defendant need not preserve a factual-sufficiency challenge.Factual Sufficiency
          In his second point of error, appellant contends that the evidence was factually
insufficient to support his conviction for the following reasons: (1) S.L. lacked
credibility because her testimony in the two trials was inconsistent and because Dr.
Arigbogu determined that S.L. had suffered from long-term alcohol abuse and (2) S.L.
showed no physical evidence of having been sexually assaulted.
          Appellant committed aggravated sexual assault if he intentionally or knowingly
penetrated, by any means, the sexual organ of S.L. or intentionally or knowingly
penetrated S.L.’s mouth with his sexual organ without S.L.’s consent.  Tex. Pen.
Code Ann. § 22.021 (Vernon 2003).
          The standard of review for factual sufficiency is whether a neutral review of all
the evidence, both for and against the finding, demonstrates that the proof of guilt is
so obviously weak, or so contrary to the overwhelming preponderance of the evidence,
as to undermine confidence in the jury’s determination of guilt.
 King v. State, 29
S.W.3d 556, 563 (Tex. Crim. App. 2000).  We may set aside the verdict only when it
is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.”  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (quoting Stone
v. State, 823 S.W.2d 375, 381(Tex. App.—Austin 1992, pet. ref’d)).  When conflicting
evidence is before us, and the question is what weight to accord such evidence, the
weight given the evidence by the factfinder governs.  Cain v. State, 958 S.W.2d 404,
408 (Tex. Crim. App. 1997).   
          First, appellant argues that the evidence is factually insufficient because S.L.
lacked credibility.  Each of the alleged inconsistencies to which appellant refers is
based on the differences in S.L.’s testimony in the two trials.
 See Washington, 16
S.W.3d 70.  Any inconsistency in S.L.’s testimony went to her credibility.  The jury
could have reasonably believed that S.L. was assaulted even if she failed to remember
the specific details surrounding the assault clearly or was otherwise inconsistent.  “The
court’s evaluation should not substantially intrude upon the jury’s role as the sole
judge of the weight and credibility of witness testimony.”  Jones v. State, 944 S.W.2d
642, 648 (Tex. Crim. App. 1996).  At the second trial, in an effort to discredit S.L.’s
veracity, appellant repeatedly compared and contrasted S.L.’s testimony from the first
trial with the testimony that she gave at the second trial.  The jury had the opportunity
to see S.L., to observe her demeanor, and to weigh the truthfulness of her answers to
appellant’s questions.  By rendering a guilty verdict in the second trial, the jury
apparently chose to accept the truthfulness of S.L.’s testimony despite any
inconsistencies.  See Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). 
Therefore, to the extent that appellant claims that the evidence is factually insufficient
because S.L. did not provide credible testimony, we hold that the jury’s verdict was
not so weak or so contrary to the overwhelming evidence as to be clearly wrong.  
          Second, appellant argues that there was no medical or scientific evidence of
sexual assault and that appellant did not contract gonorrhea from S.L.  However, S.L.
testified that appellant forcibly penetrated her and forced her to perform fellatio on
him.  S.L. also testified that appellant did not penetrate her for a long period of time
and that she did not know whether appellant used a condom or whether he had
ejaculated during the penetration.  There was also no evidence that appellant did not
have gonorrhea.  And even if he did not, appellant could have used a condom during
the assault to protect himself from sexually transmitted diseases.  Finally, S.L. claimed
that she had bathed at her home after the assault and before visiting the hospital 18
hours after the assault.  The jury could have reasonably believed that S.L. was sexually
assaulted, but that, due to the circumstances of the assault, there was no physical
evidence of the assault remaining.   
          Third, appellant argues that S.L.’s cuts and bleeding were merely ruptured
lesions on her skin, caused by pre-existing gonorrhea, rather than by appellant’s
assaulting of S.L. with his fists.  S.L.’s brother testified that he saw no such marks or
lesions on S.L. at the gas station a few hours before appellant assaulted her .  Further,
Officer Blades testified that, upon observing S.L. the morning after the assault, she
appeared to have been badly beaten and that she had a three-inch laceration on her
neck.  The State also admitted into evidence photographs of S.L. that were taken on
the day after the assault, which photographs showed that S.L. had a swollen face and
bruises and lacerations on her body.  The fact that S.L. had gonorrhea, assuming that
that condition could have caused lesions, generally would not render the evidence that
S.L.’s visible injuries were caused by appellant’s assault so against the weight of the
evidence as to be clearly unjust. 
          We hold that the evidence was factually sufficient to support the verdict.  We
overrule appellant’s second point of error.
Vindictiveness of Harsher Punishment Assessed at Second Trial
          In his first point of error, appellant contends that the trial court’s imposition of
a harsher punishment at his second trial was “presumptively vindictive” and
necessitates reversal. 
          A presumption of vindictiveness may arise when the same judge gives a
criminal defendant a greater punishment upon a retrial than the defendant received at
the preceding trial.  See N. Carolina v. Pearce, 395 U.S. 711, 725, 89 S. Ct. 2072,
2080 (1969).  However, no presumption of vindictiveness arises when the sentencer
has changed from the first trial to the second trial.  Wiltz v. State, 863 S.W.2d 463, 464
(Tex. Crim. App. 1993) (holding that no presumption occurred when defendant was
sentenced first by jury and, on retrial, by judge); Jackson v. State, 766 S.W.2d 518,
521 (Tex. Crim. App. 1988) (affirming conviction because no presumption arose when
defendant was sentenced first by one judge, but, on retrial, another judge presided over
case); Wilson v. State, 810 S.W.2d 807, 810 (Tex. App.—Houston [1st Dist.] 1991, no
pet.) (holding that no presumption arose when jury first assessed defendant’s
punishment, and, on remand, defendant requested that judge assess punishment).
          Here, appellant was initially sentenced by the jury.  After a retrial, appellant
elected to have his punishment assessed by a judge because the jury in his previous
case had sentenced him to 36 years’ confinement.  Therefore, the sentencer was not
the same in both trials, and a presumption of vindictiveness did not arise.  See Wilson,
810 S.W.2d at 810.
          We overrule appellant’s first point of error.
 
 
Conclusion
          We affirm the judgment of the trial court.
 
                                                             Tim Taft
                                                             Justice
 
Panel consists of Justices Taft, Jennings, and Hanks.
 
Publish.  See Tex. R. App. P. 47.2(b).
