                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00141-CR


KENNY FERNELL GRAVES                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM 213TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1361708D

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                        MEMORANDUM OPINION 1

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      Appellant Kenny Fernell Graves appeals his conviction and sentence for

sexual assault. We affirm.

                              Background Facts

      In 2013, Jane Dear 2 lived at the Delux Inn motel, where she had resided

for almost eight years. Late in the evening on July 7, 2013, Dear was sitting in


      1
      See Tex. R. App. P. 47.4.
her room with her door cracked open, smoking a cigarette before going to bed.

She was texting her daughter and looked up from her phone to see a man

standing outside her door “playing with himself.” She later identified the man as

Appellant. Dear testified that she had never seen Appellant before that night.

      Dear asked Appellant “to please go somewhere else,” but he refused.

Dear stood up to close her door, but Appellant pushed the door open and tried to

get Dear to perform oral sex on him. Appellant said, “If you don’t do it, I’m going

to shoot you.” Dear stood up. Appellant pushed Dear onto the bed, told her to

take off her shorts, and proceeded to have sex with her.

      When Appellant finished, he told Dear to go clean herself. Dear said, “I

went and got a washcloth, and I pretended I was cleaning up real good, but I just

barely washed, because I knew at that point that I was going to call the police

after he left, because he didn’t have a right to do that.” Appellant then used a

washcloth to clean himself and left, taking the washcloth with him.

      Dear called the police, and they took her to the hospital to perform a

sexual assault examination. The sexual assault nurse noted injuries to Dear’s

genital area and wrists. DNA from Dear’s sexual assault kit matched Appellant’s

profile, which was already in the CODIS DNA database. A Fort Worth police

detective created a photospread that included Appellant’s picture.        Another


      2
        The complainant used a pseudonym at trial. See Tex. Code Crim. Proc.
art. 57.02 (West Supp. 2015). We use the same pseudonym here. See 2nd Tex.
App. (Fort Worth) Loc. R. 7.


                                        2
detective showed Dear the photospread, and she identified Appellant as the man

who assaulted her.

      Appellant was arrested and charged with sexual assault.          A jury found

Appellant guilty, found the habitual offender allegation true, and assessed

punishment at fifty years’ confinement.          The trial court sentenced Appellant

accordingly. Appellant then filed this appeal.

                                    Discussion

1. Bad acts

      In his first issue, Appellant argues that the trial court erred by admitting

prejudicial and irrelevant evidence that he violated bond conditions by cutting off

his GPS monitoring device and moving to a different address without notifying

the probation office. Appellant also complains of testimony regarding the search

for Appellant and his arrest, which he argues “elevate[d] the importance to the

jury of what was really a routine arrest.”

      Relevant evidence is that which has any tendency to make the existence

of any fact of consequence to the determination of the action more probable or

less probable. See Tex. R. Evid. 401, 403; Hawkins v. State, 871 S.W.2d 539,

541 (Tex. App.—Fort Worth 1994, no pet.) (citing Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Such evidence is presumed to be

more probative than prejudicial and should be excluded under rule 403 only if

there is a “clear disparity between the degree of prejudice of the offered evidence

and its probative value.” Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App.


                                             3
2001).   Unfair prejudice justifying exclusion means more than a tendency to

injure or prejudice a defendant, which of course is the point of introducing

evidence in the first place, but refers to an undue tendency to suggest a decision

on an improper basis. See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim.

App. 1999); 1 Steven Goode et al., Texas Practice Series: Guide to the Texas

Rules of Evidence § 403.2 (3d ed. 2015). In making a rule 403 determination, a

trial court is to balance many factors, including the probative force of the

evidence, the State’s need for the evidence, any tendency to suggest a decision

on an improper basis or confuse the jury, and the likelihood that the presentation

of the evidence will consume an inordinate amount of time. See Gigliobianco v.

State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006).

      Outside the presence of the jury, the State presented evidence through

criminal investigator Mark Thornhill that Appellant, while out on bond, was

required to secure court approval before moving residences but did not and that

he had removed his GPS monitoring device and had thrown it in a dumpster.

Thornhill also described following Appellant’s ex-wife as she moved boxes from

Appellant’s old address until she led them to Appellant’s new apartment so they

could arrest him. Appellant objected to the evidence being presented to the jury

on the grounds that it was irrelevant and more prejudicial than probative.

See Tex. R. Evid. 401, 403. The trial court overruled Appellant’s objection and

when the evidence was presented to the jury, gave the following limiting

instruction:


                                        4
             You are instructed that if there’s any testimony before you in
      this case regarding the defendant having committed offenses other
      than the offense alleged against him in the indictment in this case,
      you cannot consider said testimony for any purpose unless you find
      and believe beyond a reasonable doubt that the defendant
      committed such other acts, if any, were committed and even then
      you may only consider the same in determining identity, motive,
      common plan, or scheme, if any, of the defendant in connection with
      the offense, if any, alleged against him in the indictment in this case
      and for no other purpose.

             Now, the admission of any extraneous conduct does not
      relieve the state of its burden of proving each and every element of
      the offense charged beyond a reasonable doubt.

Similar limiting instructions were also included in the jury charge.

      Appellant’s theory at trial, as he stated in his opening argument, was that

the sexual encounter with Dear was consensual. To rebut this theory, the State

introduced the above evidence to demonstrate Appellant’s consciousness of guilt

and intent to flee. As Appellant acknowledges, evidence of extraneous offenses

may be admissible to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. See Tex. R. Evid.

404(b)(2).   This includes evidence of an intent to flee.       See Alba v. State,

905 S.W.2d 581, 586 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1077 (1996)

(holding extraneous offense related to defendant’s flight admissible under rule

404(b)). Such evidence is also admissible to rebut a defensive theory put forth

by the defendant. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)

(“[A] defense opening statement, like that made in this case, opens the door to

the admission of extraneous-offense evidence, like that admitted in this case, to



                                          5
rebut the defensive theory presented in the defense opening statement.”). The

complained-of evidence was thus relevant to and probative of Appellant’s

consciousness of guilt, demonstrating that he knew Dear did not consent to the

sexual encounter. See Tex. R. Evid. 401, 403.

      Further, the trial court gave limiting instructions that alleviated concerns

that the jury would be confused by the evidence or would use it for an improper

purpose. See Price v. State, 351 S.W.3d 148, 154 (Tex. App.—Fort Worth 2011,

pet. ref’d) (citing Burton v. State, 230 S.W.3d 846, 851 (Tex. App.—Houston

[14th Dist.] 2007, no pet.)). Courts of appeal presume that the jury follows the

trial court’s instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App.

2005). Appellant has not suggested that the jury failed to follow the trial court’s

limiting instructions. See id. We therefore conclude the trial court did not abuse

its discretion by admitting the complained-of evidence, and we overrule

Appellant’s first issue.

2. Sufficiency of the evidence

      In his second issue, Appellant argues that the evidence is insufficient to

support his conviction. Specifically, he points to alleged discrepancies between

the sexual assault nurse’s testimony that Dear’s wrists were discolored and

photographs of Dear evidencing no injury and between Dear’s testimony that

Appellant pushed his way into her room and security video footage. In our due-

process review of the sufficiency of the evidence to support a conviction, we view

all of the evidence in the light most favorable to the verdict to determine whether


                                        6
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); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

      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. Pen. Code Ann. § 22.011(a)(1)(A) (West

2011). Appellant did not dispute that he had sex with Dear. He argued only that

it was consensual.

      The testimony of a victim, standing alone, is sufficient to support a

conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim.

App. 1990). There is no necessity of physical injury for a conviction. Edwards v.

State, 97 S.W.3d 279, 291 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Appellant’s complaints go to the credibility of the witnesses, and the jury is the

sole judge of the credibility. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App.

2000). Further, Dear testified that after she asked Appellant to leave, she stood

up to close the door, and Appellant pushed his way in. The security video shows

Appellant approaching Dear’s room and leaning on the door for roughly three to

four seconds before entering. Dear was sixty-four years old at the time of trial.

She had high blood pressure, high cholesterol, and arthritis.       She lived on

disability payments from the Social Security Administration. Appellant was thirty-

five years old at the time of trial and taller than Dear.   The jury could have




                                        7
reasonably believed that the struggle to which Dear testified was brief and that

Appellant quickly overpowered the older, disabled Dear.

         Viewing the evidence in a light most favorable to the verdict, we conclude

a rational trier of fact could have found beyond a reasonable doubt that Dear did

not consent to the sexual encounter with Appellant. The evidence is therefore

sufficient to support the jury finding of guilt. We overrule Appellant’s second

issue.

3. Competency

         In his third issue, Appellant argues that the trial court erred by failing to

have Appellant evaluated for competency to stand trial. Article 46B.003(a)(1)

and (2) of the Texas Code of Criminal Procedure provides, in pertinent part, that

“[a] person is incompetent to stand trial if [he] does not have . . . sufficient

present ability to consult with [his] lawyer with a reasonable degree of rational

understanding; or . . . a rational as well as factual understanding of the

proceedings against [him].” Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1)–(2)

(West 2006).        A defendant is presumed to be competent unless proved

incompetent by a preponderance of the evidence. Id. art. 46B.003(b). However,

any “suggestion” of incompetence to stand trial requires the trial court to conduct

an “informal inquiry” to determine whether evidence exists to justify a formal

competency trial. Id. art. 46B.004(c) (“On suggestion that the defendant may be

incompetent to stand trial, the court shall determine by informal inquiry whether

there is some evidence from any source that would support a finding that the


                                           8
defendant may be incompetent to stand trial.”). This suggestion of incompetency

“is the threshold requirement for an informal inquiry . . . and may consist solely of

a representation from any credible source that the defendant may be

incompetent.” Id. art. 46B.004(c–1) (West Supp. 2015).

      Evidence showing incompetence may include truly bizarre behavior by the

defendant or a recent history of “severe mental illness or at least moderate

mental retardation.” Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App.

2009), superseded on other grounds by statute, Tex. Code Crim. Proc. Ann. art.

46B.004(c–1). Appellate courts review a trial court’s decision whether to conduct

a formal competency examination for an abuse of discretion. Id. at 426. A trial

court abuses its discretion if its decision is arbitrary or unreasonable. Id.

      Prior to voir dire, after both sides had announced that they were ready,

Appellant’s trial counsel stated,

            Judge, there’s something I need to put on the record. Mr.
      Graves is in the courtroom. I had gotten a report. Someone told me
      that Mr. Graves had attempted suicide in his cell. I didn’t ask him
      about that, but I have talked with him in the last few minutes. He
      says he’s ready for trial.

             I went over his elections. I told him he could have the Judge
      to decide punishment after a jury trial or the jury decide punishment
      after a jury trial. He stated he wanted to have a—a jury—jury
      election of punishment.

             I asked him if he was okay. He stated he was. He seems to
      be coherent and understands what’s going on. I don’t have, at this
      point, any question that he is competent to stand trial. I do . . .
      believe he is.




                                          9
              And he’s also told me that he—that he’s not going to be a
       behavior problem. And I don’t think anything he’s done would
       suggest that he—he would be a threat to anybody in the courtroom
       with the possible exception of himself but—but not in the courtroom.

             THE COURT: All right. Mr. Graves, please stand and face
       the Court.

              ....

               Mr. Graves, it was brought to my attention at about 12:40
       today that you were found in the holdover cell with a belt around
       your neck in an effort to commit suicide. And I wanted to find out,
       first of all, what your present physical condition is. And just looking
       at you, you appear to be okay. Do—are you—are you feeling okay?

              THE DEFENDANT: Yes, sir. Yes, Your Honor.

After a discussion regarding whether Appellant should be required to wear a stun

belt during the trial, the trial court said,

              It’s been also brought to my attention, Mr. Graves, that you
       have been examined by sheriff’s department medical personnel,
       including MHMR personnel, this afternoon. And, of course, the
       sheriff’s department wants me to keep a shock device on you; do
       you understand that?

              THE DEFENDANT: Yes, sir.

              THE COURT: That’s what they want.

             I am—I’m telling you right now, if there’s any problems, I will
       have one on you. Okay. But . . . we’ll have it taken off.

              THE DEFENDANT: Yes, sir, Your Honor.

            THE COURT:            All right.        But if there’s any problem
       whatsoever, it will be on.

              THE DEFENDANT: There won’t be no problem.




                                               10
      Appellant’s trial counsel did not provide evidence supporting an

incompetency finding such as “truly bizarre behavior” or “severe mental illness or

at least moderate mental retardation.” Id.; see also Grizzard v. State, No. 01-06-

00930-CR, 2008 WL 2611865, at *6 (Tex. App.—Houston [1st Dist.] July 3, 2008,

no pet.) (mem. op., not designated for publication) (holding that trial court did not

abuse its discretion by not finding appellant incompetent when he was suicidal

the night before when, among other things, “appellant had met with his trial

attorney immediately before the sentencing phase began and the attorney

represented to the court that appellant was aware of what was going on and

wanted to participate in the punishment phase of the trial”).        He stated that

Appellant had the present ability to consult with him with a reasonable degree of

rational understanding and had a rational as well as factual understanding of the

proceedings against him. See Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1)–

(2). Appellant’s attempt at suicide, without any evidence of severe mental illness,

is not a suggestion of incompetence requiring a hearing. See Maines v. State,

170 S.W.3d 149, 150 (Tex. App.—Eastland 2005, no pet.) (“[A] defendant cannot

avoid trial by intentionally disabling himself.”) (citing Bottom v. State, 860 S.W.2d

266, 267 (Tex. App.—Fort Worth 1993, no pet.)). And even if Appellant’s suicide

attempt necessitated court review, the trial court did conduct an informal inquiry

into Appellant’s competence and noted that Appellant “appear[ed] to be okay”

and that Appellant had been examined by “medical personnel, including MHMR




                                         11
personnel.”   The trial court did not abuse its discretion by failing to order a

competency evaluation. We overrule Appellant’s third issue.

                                  Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.


                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 17, 2015




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