                               MEMORANDUM OPINION
                                        No. 04-10-00372-CR

                                        Matthew GAITHER,
                                             Appellant

                                                v.

                                        The STATE of Texas,
                                              Appellee

                    From the 186th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008CR8848B
                          Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: August 17, 2011

AFFIRMED

           A jury found appellant, Matthew Gaither, guilty of aggravated kidnapping and

aggravated sexual assault and assessed punishment at thirty years’ confinement and a $10,000

fine on each count. In two issues on appeal, appellant challenges the sufficiency of the evidence

in support of the verdict. We affirm.
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                                             DISCUSSION

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

knowingly . . . causes the penetration of the . . . sexual organ of another person by any means,

without that person’s consent . . . .” TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (West 2011).

A person commits the offense of aggravated kidnapping if the person “intentionally or

knowingly abducts another person with the intent to . . . inflict bodily injury on [her] or violate or

abuse [her] sexually; . . . [or] terrorize [her] or a third person . . . .” Id. § 20.04(a)(4), (5).

        On appeal, appellant asserts the State did not prove he was the individual who sexually

assaulted the complainant; instead, appellant contends his brother was the perpetrator. Appellant

also asserts that because he did not transport the complainant to the duplex where she was held

and assaulted and because he was not the person who sexually assaulted the complainant, the

evidence is legally insufficient to support his conviction for aggravated kidnapping.                 In a

sufficiency challenge to the evidence, we review all the evidence in the light most favorable to

the jury’s verdict to determine whether any rational jury could have found the essential elements

of the charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899, 912

(Tex. Crim. App. 2010). We defer to the jury’s credibility and weight determinations because

the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.

Id. at 899.

        The complainant testified she had a relationship with appellant’s brother Kirk before she

had any relationship with appellant.         After she and appellant began dating, Kirk began a

relationship with Lakeshia Huff. According to the complainant, Kirk became meaner and more

aggressive when Lakeshia was around, and Lakeshia “pick[ed] on” the complainant, threatened

to beat her “ass,” and would argue and fight with her. The complainant said that, on July 13,



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2008, she and appellant drove in Kirk’s white Cadillac to an apartment complex, where she

waited inside the car while appellant went into an apartment. After tiring of waiting for his

return, the complainant drove away in Kirk’s car.

       The complainant drove to the home of David Jones (“Petey”) because she wanted to use

his telephone to call Kirk, but Petey refused. A short time later, appellant, Kirk, and Lakeshia

arrived at Petey’s house. The complainant said Kirk and Lakeshia got out of the Mercedes in

which all three arrived and began to beat her. She said appellant did not beat her, but instead, he

drove away in the Cadillac. Kirk and Lakeshia then got the complainant into the Mercedes and

drove her to a duplex, where appellant was already present. Kirk and Lakeshia continued to beat

the complainant, but, after a while, they left the duplex. Appellant then strapped the complainant

to a chair and he would not allow her to lose consciousness. She said appellant pulled out two of

her teeth with pliers, burned her with a spoon heated on the stove, and inserted what she thought

was a broomstick into her vagina. The next morning, while appellant slept, the complainant

untied herself and left the duplex, where she was helped by a woman and her husband who called

the police.

       When the police arrived, appellant was standing in front of the duplex. A police officer

asked appellant what happened, and appellant pointed to the complainant and said “she got beat

up.”   The officer testified the complainant told him that appellant “did it.”        He said the

complainant was bruised and bleeding and she was yelling “keep him [appellant] away from me

. . . he is one of them.” The officer described the complainant as badly injured and “her mind-set

wasn’t correct at the time as far as just being frantic and being hysterical.” The complainant was

taken by EMS to a hospital, but she could not remember what happened once there.




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       When asked if he knew anything about what happened to the complainant, appellant said

he did not. Appellant told the police he had just arrived at the duplex and he had spent the night

somewhere else, although he said he did not know where he stayed. Appellant gave the police

permission to look inside his duplex and, having stated he spent the night elsewhere and knew

nothing about what happened to the complainant, appellant showed no surprise at what he and

the police officer saw inside his duplex—blood on the floor and a wall, a hole in the wall, a pair

of pliers and a tooth, another tooth on the television set, and a chair with straps that were similar

to the strap still attached to the complainant’s leg. Appellant denied knowing the complainant.

       Because the condition of the duplex was consistent with what the complainant told the

police, appellant was arrested at the scene. Known DNA samples were neither submitted nor

compared from Kirk, Lakeshia, or appellant. However, the investigating police officer explained

he would not normally obtain DNA samples from suspects if the complainant was sexually

assaulted with a wooden stick, as in this case. No other physical evidence linked appellant to the

crime. However, the physical evidence that was collected at the scene and the condition of the

duplex all corroborated the complainant’s version of events.

       On appeal, appellant argues Kirk and Lakeshia were the only individuals seen beating the

complainant and the complainant gave several versions of the kidnapping and assault.

According to appellant, this case turns on whether the complainant “in her state of shock, trauma,

and under the influence of drugs, could properly identify” him as the perpetrator. Apparently,

the jury believed that she could. The complainant said she had known both Kirk and appellant

for about a year before the kidnapping and assault and she could tell the difference between the

two men. Although she admitted her memory was blurry when she escaped and she could not




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remember what appellant was wearing when he assaulted her, she did not hesitate to identify

appellant as the person who tied her to the chair and assaulted her.

                                         CONCLUSION

       We defer to the jury’s credibility and weight determinations because the jury is the sole

judge of the witnesses’ credibility and the weight to be given their testimony. Based on our

review of all the evidence in the light most favorable to the jury’s verdict, we conclude a rational

jury could have found the essential elements of the charged offenses beyond a reasonable doubt.

Therefore, we overrule appellant’s issues on appeal and affirm the trial court’s judgment.




                                                  Sandee Bryan Marion, Justice

Do not publish




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