                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-270-CR


RALPH EDGAR MESSENGER                                   APPELLANT

                                             V.

THE STATE OF TEXAS                                           STATE

                                         ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

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                                  I. Introduction

     In one point, Appellant Ralph Edgar Messenger appeals from his

conviction for sexual assault. We affirm.




     1
         … See T EX. R. A PP. P. 47.1.
                      II. Factual and Procedural History

       On January 21, 2006, M.H., the complainant, and her husband, B.H.,

went to visit M.H.’s mother, Linda, at her home in Bedford, Texas, which she

shared with M.H.’s stepfather, Messenger. When M.H. and B.H. arrived, Linda

and Messenger were not there, so they used M.H.’s key and went inside.

While they waited for Linda and Messenger, they watched television and drank

martinis. A short time later, Linda, Messenger, and Bobby, M.H.’s nineteen-

year-old stepbrother, came home and began watching television with them.

Bobby was the only person who did not drink any alcohol that evening; he

stayed between fifteen minutes to an hour and a half before leaving.

       M.H. felt sick that evening and took some Nyquil in addition to the

martinis. At some point that evening, she decided to go to bed. Linda led M.H.

to a spare bedroom and helped her into bed. M.H. and Linda testified that M.H.

only took her shoes off and remained otherwise fully clothed when she got into

bed.

       M.H. testified that, when she woke up, she was partially undressed and

Messenger was holding her legs apart and sticking his tongue in and out of her

vagina. She testified that, when she began to protest, Messenger said, “Oh,

yeah, you are so special.” He put his face back between her legs and held

them down, keeping them spread. M.H. testified that she protested again and

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then kicked him and pushed him off of her with her legs. She testified that

Messenger had no shirt on and that he fled the room after pulling up his shorts.

      B.H. testified that he heard screaming and yelling and then saw

Messenger coming out of the hallway area, wearing only his shorts.            A

confrontation ensued in the kitchen between M.H., B.H., Linda, and Messenger

when M.H. accused Messenger of sexually assaulting her. Shortly thereafter,

M.H. and B.H. drove home to Little Elm and called the Bedford police.

      M.H. and B.H. returned to Bedford that night to give a statement to the

police, and M.H. had a sexual assault exam performed. Messenger provided

DNA buccal swabs to the police, but no DNA tests were performed. M.H.

reported previous sexual activity with her husband on the day of the assault.

The DNA technical leader of the Tarrant County Medical Examiner’s office,

Constance Patton, testified that there was little chance that Messenger left

behind any recoverable DNA, due to the nature of the sexual assault.2


      2
          … Patton stated:

      When you have possible saliva mixed with a vaginal specimen, that
      is a difficult sample to begin with, because you have an
      overwhelming contribution of DNA coming from the female . . . .
      Add to that, in this particular case, you have a semen contributor,
      so you have a possibility of at least three contributors. You have
      the female, her consensual partner, and the saliva contributor, if
      present. So the chances of picking up DNA from the saliva
      contributor are extremely rare. I can’t say it’s impossible, but the

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      During the course of the trial, M.H., Linda, and Bobby gave differing

opinions regarding how intoxicated everyone was and how much alcohol had

been consumed prior to the incident. Bobby testified that M.H. “kept kind of

like . . . being flirtatious” with Messenger, and that she kept asking him, “How

do these—like how do these glasses look?” Defense counsel asked Linda, “Did

[M.H.] ask [Messenger] if . . . he thought she was sexy?” Linda replied, “Yes,

she did. I heard that.”

      A jury convicted Messenger of sexually assaulting M.H. and assessed

punishment at seven years’ confinement. This appeal followed.

                               III. Sexual Assault

      Messenger contends that the evidence was legally insufficient to support

his conviction for sexual assault. The trial court’s charge to the jury stated:

      A person commits the offense of sexual assault if the person
      intentionally or knowingly causes the penetration of the female
      sexual organ of another person, by any means, without that
      person’s consent. A sexual assault is without the consent of the
      other person if: the actor compels the other person to submit or
      participate by the use of physical force or violence; or 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,
      or other person has not consented and the actor knows the other
      person is unaware that the sexual assault is occurring.



      chances of picking that up would be extremely difficult, if not
      impossible.

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A. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

B. Applicable Law

      A person commits 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.”    T EX.   P ENAL   C ODE   A NN.

§ 22.011(a)(1)(A) (Vernon Supp. 2007).       A sexual assault occurs without

“consent” when the other person has not consented and the actor knows the

other person is unaware that the sexual assault is occurring.                Id. §

22.011(b)(5).

C. Analysis


      Messenger argues that the evidence was legally insufficient because there

was evidence that the complainant was intoxicated at the time of the assault




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and that she had previously acted in a “flirtatious manner” with him, and

because there was no DNA evidence.


      The State presented evidence through M.H.’s testimony that Messenger

intentionally or knowingly sexually assaulted M.H. by penetrating her sexual

organ using his tongue, without her consent. See id. § 22.011(a)(1)(A). M.H.

testified, “he was holding my legs apart, and he was--he had his head between

my legs, and he was putting his tongue in and out of my vagina.” She further

testified,


      Q. When you realized where he was placing his tongue, what did
      you do?


      A. I told him to, “Get the fuck off of me.“


      Q. And what did he–did he immediately do so?


      A. No.


      Q. What did you do?


      A. Well, he said, “Oh, you’re so special,” and he tried to go—and
      well, he did. He took his face, and he put it back down in between
      my legs, and he started licking on my vagina [sic] again, and he
      kept his hands on my legs and holding them down, keeping them
      spread. And I told him to, “Get the hell away from me,” and since
      he didn’t, I took my two legs, and I kicked him. I took them, and
      I leaned back, and I kicked him off of me, like kicked his shoulders
      and kicked him away from me and pushed him back.

                                       6
      Viewed in the light most favorable to the prosecution, the jury, the sole

judge of the evidence’s weight and credibility, could have found beyond a

reasonable doubt that Messenger committed the offense of sexual assault. See

id.; T EX. C ODE C RIM. P ROC. A NN. § 38.04 (Vernon 1979); Clayton, 235 S.W.3d

at 778; Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Although there was varying testimony about how intoxicated M.H. was that

night, a witness’s intoxication bears on her credibility, which is a matter

reserved for the jury. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App.

1997).   Additionally, despite the lack of physical evidence, M.H. provided

sufficient testimony to show that a sexual assault had occurred. See Tinker v.

State, 148 S.W.3d 666, 669–70 (Tex. App.—Houston [14th Dist.] 2004, no

pet.); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)

(stating that the complainant’s testimony, “standing alone, is sufficient

evidence of penetration”). Finally, while there was testimony that M.H. acted

in a flirtatious manner toward Messenger earlier in the evening, M.H. testified

that his tongue was going in and out of her vagina when she woke up, another

indication of her lack of consent. See T EX. P ENAL C ODE A NN. § 22.011(b)(5).

Consequently, we hold that the evidence was legally sufficient to support the

jury’s verdict. We overrule Messenger’s sole point.




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                             IV. Conclusion


      Having overruled Messenger’s sole point, we affirm the trial court’s

judgment.


                                        PER CURIAM


PANEL F:     MCCOY, J.; CAYCE, C.J.; and WALKER, J.


DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)


DELIVERED: June 12, 2008




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