Affirmed and Memorandum Opinion filed November 20, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00686-CR

                   DAMON KENDRICK DOVE, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 268th District Court
                           Fort Bend County, Texas
                   Trial Court Cause No. 12--DCR-061181A

                MEMORANDUM                     OPINION


      In two issues, appellant Damon Kendrick Dove challenges his conviction of
sexual assault. See Tex. Penal Code § 22.011. We affirm.

                                I. BACKGROUND

      On June 12, 2012, Deputy Steven Treece of the Fort Bend County Sheriff’s
Department was responding to a 911 call about a possible burglary when the
complainant in this case ran up to his patrol car window and reported a sexual
assault.

      The complainant subsequently gave a videotaped statement in which she
stated that she met appellant at the pool earlier on the day of the offense. Appellant
told her about his children and offered to give her a ride home. When appellant
dropped the complainant off at her home he asked her if she wanted to watch a
basketball game that night. The complainant agreed, and said that appellant picked
her up later that night, and they went to a bar to watch the basketball game. After
drinking beer and playing pool at the bar, appellant asked the complainant if she
wanted to drive somewhere to see some deer. The complainant asked how they
would see deer at night when it was dark. Appellant told her he would leave his
headlights on to light the area. Appellant drove to a secluded location on a dirt
road. Contrary to what he told the complainant earlier, appellant turned off the
headlights as soon as he stopped the car. The complainant asked him what was
happening. Appellant responded, “Get out of the car and walk home or put out.”
The complainant said at that moment she was terrified. The complainant described
appellant’s tone as demanding. The complainant was afraid to get out of the car
because she did not know where she was. She was afraid appellant might kill her.

      Appellant then climbed over the console into the passenger seat where the
complainant was sitting, and began to take off his pants. Appellant demanded that
the complainant take off her top and began to pull off her clothes. At that time the
complainant was afraid appellant would continue hurting her. After penetrating her
while in the front seat, appellant told the complainant to get in the back seat “or
walk home.” The complainant complied and climbed in the back seat. Appellant
requested that she turn around with her back toward him. He was hitting her vagina
at the same time as he assaulted her, which caused the complainant to lose control
of her bladder. At that point the complainant grabbed her purse, pushed appellant

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away, and fled from the car.

      As the complainant was running she took off her shoes, and ran across a
field. She saw a tall fence and jumped over it to get to the house. There were two
children and a dog in the backyard of the house. The children went inside and the
complainant went to the front door of the house asking for help. The homeowner
told the complainant to go away so she ran to another house, knocked on the door,
but there was no answer. She ran away from that house when she saw the sheriff’s
deputy responding to the burglary call.1

      The day after the offense, appellant learned that law enforcement officers
considered him a suspect in the sexual assault. Appellant phoned Detective Jarret
Nethery, the investigating officer, and expressed a desire to tell his account of the
night. Nethery and Detective Marshia Cox conducted and recorded a noncustodial
interview with appellant. A redacted version of the videotaped interview was
played for the jury.

      At the beginning of the interview the detectives explained to appellant that
he was not under arrest and was free to leave. According to appellant, he and the
complainant met at the pool earlier in the day and he gave the complainant and her
brother a ride home. Appellant asked the complainant if she wanted to go out that
night, and she agreed to go to a bar to watch a basketball game. Appellant and the
complainant left the bar at approximately 9:30 p.m., drove to a subdivision near
where both he and the complainant lived, and parked on the side of the road.
Appellant admitted that he penetrated the complainant’s vagina with his penis.
They moved to the back seat of the car and continued until she urinated on herself.
The complainant decided to leave; appellant offered to drive her home, but the

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         The homeowner of the first house misunderstood why the complainant was in his
backyard, called 911, and reported a burglary.

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complainant chose to walk home. Appellant stated they were parked for
approximately 45 minutes, but the complainant never told him she did not consent
to intercourse.

      After appellant’s interview was shown to the jury, Nethery testified to
several inconsistencies in appellant’s interview. First, the location that appellant
said was near his and the complainant’s home was actually not walking distance to
either home. Second, appellant said he was parked on the side of the road, but
Nethery said a car would have been detected if parked near the road.

      The complainant testified at trial, and repeated the events as she told them in
the videotaped interview. At trial, the complainant testified that appellant told her,
“Get out of the car and walk home or take your clothes off.” This differed slightly
from the ultimatum the complainant repeated in the video. The complainant
testified that while appellant was on top of her in the front seat of the car she did
not feel she could leave. She was afraid appellant would kill her if she tried to
leave. After the complainant contacted the sheriff’s deputy she was transported to
the hospital where she first spoke with Detectives Nethery and Cox. The next day
the complainant, Nethery, and Cox found one of the complainant’s shoes in the
area where appellant had driven the night before. Treece found the complainant’s
other shoe the night of the assault when he was responding to the 911 call.

      The sexual assault nurse examiner testified that she performed an
examination on the complainant in which she detected abrasions and bruises
consistent with the complainant jumping over a fence. The nurse also detected a .5
centimeter tear at the 6:00 position on the labia minora. She testified that this
location is the most common place an injury occurs with penetration.

      The nurse examiner further testified that the complainant reported the assault
as follows:
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      Patient states: He — I think his name is spelled Mapon — picked me
      up at 7:00 p.m. We went to the bar, and he asked me if I wanted to go
      see some deer for a while. I thought that sounded cool, so I said okay.
      He drove down this dirt road and parked, and that’s where it
      happened. He raped me. He told me in this mumbling, scary sounding
      voice to either put out or walk home. I was really scared, and I didn’t
      know if he would hurt me. He got on top of me. I said, ‘No.’ And he
      said, ‘Put out or get out and walk home.’ He put his penis in my
      vagina. It hurt me so bad. It hurt my bladder so bad I peed on myself.
      I jumped out of the car and ran, jumped a fence, and asked for help.

      The nurse concluded that the physical findings were consistent with the
history given by the complainant. Appellant was convicted of sexual assault and
the jury assessed punishment at 35 years in prison.

                       II. SUFFICIENCY OF THE EVIDENCE

      In his first issue appellant argues the evidence is insufficient to support his
conviction. When reviewing the sufficiency of the evidence, we view all of the
evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether a rational jury could
have found the elements of the offense beyond a reasonable doubt. Gear v. State,
340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S.
307, 318–19 (1979)). In making this review, an appellate court considers all
evidence in the record, whether it was admissible or inadmissible. Winfrey v. State,
393 S.W.3d 763, 767 (Tex. Crim. App. 2013).

      We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Brooks v. State, 323 S.W.3d 893, 900 (Tex.
Crim. App. 2010). We defer to the jury’s responsibility to resolve any conflicts in
the evidence fairly, weigh the evidence, and draw reasonable inferences. Id. The
jury alone decides whether to believe eyewitness testimony, and it resolves any
conflicts in the evidence. Id. In conducting a sufficiency review, we do not engage

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in a second evaluation of the weight and credibility of the evidence, but only
ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d).

      A person 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)(A). Appellant admitted
having sex with the complainant on the night of the offense. The issue before us is
whether the evidence supports the jury’s finding that the complainant did not
consent. With regard to consent, the jury was instructed that a sexual assault 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; or (2) the actor
compels the other person to submit or participate by threatening to use force or
violence against the other person, and the other person believes that the actor has
the present ability to execute the threat[.]”

      Appellant argues the jury heard no evidence the complainant was forced to
do anything. He argues that while the complainant was frightened, appellant’s
actions and words did not cause her fear.

      The fact finder considers the totality of the factual circumstances in
determining whether the victim consented. Brown v. State, 576 S.W.2d 820, 823
(Tex. Crim. App. 1978); see also Graves v. State, 994 S.W.2d 238, 243–44 (Tex.
App.—Corpus Christi 1999, pet. ref’d) (finding evidence of implicit threat of force
when defendant threatened to beat victim as he had done on at least one prior
occasion); Gonzalez v. State, 2 S.W.3d 411, 415 (Tex. App.—San Antonio 1999,
no pet.) (finding evidence of physical force when defendant laid on top of the
complainant preventing her from moving).

      The testimony of a victim, standing alone, is sufficient to support a
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conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim.
App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d). Moreover, the jury is the sole judge of the credibility of the
witnesses at trial. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000); see
Hernandez v. State, 804 S.W.2d 168, 170 (Tex. App.—Houston [14th Dist.] 1991,
pet. ref’d) (stating “the jury had the ability to observe the witnesses carefully, to
hear the fear or violence projected from each witness, and to evaluate the
credibility of each witness and the overall sufficiency of the evidence on the issue
of consent”). Explicit verbal threats and physical injury are not necessary to prove
a defendant compelled a victim’s participation. Edwards v. State, 97 S.W.3d 279,
291 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

      In this case, the jury heard testimony that appellant drove the complainant to
a secluded area, not the area he described in his voluntary statement. He instructed
the complainant to get out of the car and walk home or “put out.” The complainant
testified she was afraid for her life and was afraid to get out of the car because she
did not know where she was. The complainant testified that appellant struck her
vaginal area with his hand so forcefully that it caused her pain.

      There is nothing in the record to suggest the jury’s resolution of the
testimony was not reasonable. See Cain v. State, 958 S.W .2d 404, 410 (Tex. Crim.
App. 1997). The complainant testified to the fear she perceived from appellant and
the threats appellant used to keep her from fleeing. Viewing the evidence in a light
most favorable to the prosecution, we conclude a rational trier of fact could have
found beyond a reasonable doubt that appellant intentionally or knowingly caused
the sexual organ of the complainant to contact his sexual organ without her
consent. Therefore, the evidence is legally sufficient to find appellant guilty of
sexual assault. We overrule appellant’s first issue.

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                     III. EXCLUSION OF MEDICAL RECORDS

      In his second issue appellant argues that relevant and admissible evidence of
the complainant’s mental health history should have been admitted at trial.

      At trial, with regard to the complainant’s mental health history, Dr. Nancy
Baptiste, a psychiatrist at Texana Living Center, testified that she treated the
complainant for schizophrenia. She testified that the general symptoms of
schizophrenia include a loss of being in touch with reality, hallucinations,
delusions, and disorganized thoughts. When Baptiste first saw the complainant, she
was taking Seroquel and Haldol, antipsychotic drugs, and Cogentin, a drug which
addresses side effects that may occur from some antipsychotic drugs. Baptiste
testified that the only delusions of the complainant that Baptiste recorded were that
she was pregnant and that the government “was after her grandparents.”

      During Dr. Baptiste’s cross-examination, defense counsel presented her with
an unidentified document and asked Dr. Baptiste whether she had reviewed the
document to make her initial diagnosis of the complainant. Dr. Baptiste responded,
“I can’t say for sure . . . I might have.” The following discussion then took place at
the bench:

      MR. MCCLURE [defense counsel]: At this time, I do intend to go
      into that if the State has an objection —
      THE COURT: First off, it’s a document that’s not been admitted into
      evidence yet. It’s part 4 of Texana’s records — as far as the exception
      to the hearsay rule —
      MR. MCCLURE: Well, that’s what I have Ms. Marcus here for.
      THE COURT: The entire records [sic] doesn’t come in —
      MR. MCCLURE: Of course. Of course.
      THE COURT: Under the highlighted portion —
      MR. MCCLURE: Of course.

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      THE COURT: But this doctor has not testified that she used it in any
      diagnosis or treatment, so it’s not relevant as to this physician.
      MR. MCCLURE: Okay. I guess I’ll just wait.
      THE COURT: I’ll sustain the State’s objection at this point, but
      they’re not even close to getting —
      MR. MCCLURE: I understand.

      As defense counsel continued to cross-examine Baptiste he showed her
several unidentified documents and asked whether she had relied on those
documents in her diagnosis and treatment of the complainant. Each time Baptiste
answered that she could not specifically remember the complainant’s treatment and
that she did not rely on the documents presented to her by counsel.

      Following his conviction appellant filed a motion for new trial to which he
attached the complainant’s mental health records. Appellant argued that had the
records been admitted he would have been found not guilty by the jury. The trial
court denied appellant’s motion. On appeal appellant argues the trial court erred in
excluding the complainant’s mental health records. The State argues appellant
waived error by failing to offer the mental health records into evidence.

      Appellant argues that he preserved error during the conversation at the bench
when the document, which the court identified as “part 4 of Texana’s records,” was
shown to Baptiste and the trial court sustained the State’s objection. Contrary to
appellant’s assertion, he never offered the complainant’s mental health records into
evidence. Appellant attempted to cross-examine Baptiste on the document, and
counsel stated, “I guess I’ll just wait.” Appellant did not later attempt to introduce
the documents either for purposes of cross-examination of Baptiste, or as an offer
of proof for purposes of preservation of error. Even if the above-quoted exchange
could be considered a ruling on the offer of the evidence, appellant failed to make
a timely offer of proof to the trial court.

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      In order to preserve error regarding a trial court’s decision to exclude
evidence, the complaining party must comply with Rule of Evidence 103 by
making an “offer of proof” which sets forth the substance of the proffered
evidence. Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009). The
primary purpose of an offer of proof is to enable an appellate court to determine
whether the exclusion was erroneous and harmful. Id. A secondary purpose is to
permit the trial court to reconsider its ruling in light of the actual evidence. Id.

      In this case, appellant did not present the documents to the trial court until
after judgment in his motion for new trial. Although such an offer serves the
purpose of enabling the appellate court to review the documents, appellant did not
give the trial judge an opportunity to reconsider his ruling prior to the jury’s
verdict. Because appellant failed to offer the evidence at trial, or make a timely
offer of proof, he waived his objection to the exclusion of the medical records. See
Tex. R. App. P. 33.1. We overrule appellant’s second issue.

      The judgment of the trial court is affirmed.




                                         /s/    John Donovan
                                                Justice


Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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