in Re: Richard M. King, Jr.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00064-CV ______________________________ IN RE: RICHARD KING, JR. Original Mandamus Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Richard King, Jr., has filed a petition for writ of mandamus, asking this Court to find that the denial of his motion to recuse Judge Jim Lovett was an abuse of discretion on the part of the appointed judge who heard the motion, and to order Judge Lovett recused from the case. We grant the extraordinary relief of mandamus only when the relator adequately shows this Court that the trial court clearly abused its discretion and the relator lacks an adequate appellate remedy. In re Team Rocket, L.P., No. 06-0414, 2008 Tex. LEXIS 501 (Tex. May 23, 2008) (orig. proceeding). Both the Texas Supreme Court and the Texas Court of Criminal Appeals have held that mandamus is not available for the denial of a motion to recuse. In re McKee, 248 S.W.3d 164 (Tex. 2007) (orig. proceeding); De Leon v. Aguilar, 127 S.W.3d 1, 6 (Tex. Crim. App. 2004) (orig. proceeding); see Tex. R. Civ. P. 18a(f) ("If the [recusal] motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment."). (1) We deny the petition. Jack Carter Justice Date Submitted: June 26, 2008 Date Decided: June 27, 2008 1. A court of appeals should not grant mandamus relief to the complaining party on a recusal motion under Tex. R. Civ. P. 18a because the party has an adequate remedy at law by way of an appeal from the final judgment. In re Union Pac. Res. Co., 969 S.W.2d 427 (Tex. 1998). EVIDENCE AT TRIAL After a friend failed to pick her up on the night of July 15, 2003, M.D. left the residence of some relatives and began walking home. Shortly after she began to proceed, M.D. encountered Baxter, who was riding a bicycle. Baxter approached M.D. and began to accompany her as she walked, talking to her; this continued for several blocks. When Baxter initially approached M.D., M.D. was considerably closer to the residence of her relatives than to her house, but M.D. nevertheless made no attempt to return to her relatives' house to seek safety there. M.D. testified that soon after he fell in beside her, Baxter began to talk about oral sex. During this walk, Baxter and M.D. were near a Tyler police station and passed by a large blue sign indicating the location of that police station. M.D. saw her husband drive by as she was walking along with Baxter, but made no attempt to flag her husband down to seek his assistance. M.D.'s husband testified he did not notice anything unusual about M.D. when he drove by her except that she was walking with an unknown man. As M.D. and Baxter entered a dark alley, Baxter threw his bicycle to the ground and approached M.D., causing M.D. to attempt flight. Baxter grabbed M.D. while putting his hand over her mouth; he then threw M.D. to the ground atop a fire ant hill and started performing oral sex on her. Baxter then proceeded to engage in vaginal intercourse with M.D. against her will and without her consent. M.D. testified she was looking for someone to help her get away from Baxter during the entire time she was walking with him. Manuel Velasco, who had observed M.D. and Baxter walking together, heard M.D. screaming, got into his car, and drove his car into the alley. Velasco testified that he saw Baxter leaving the scene with a bicycle and that M.D. appeared to be frightened, so he drove her to her home, where she called the police. Velasco testified that although he had handed M.D. his cell phone in the alley, M.D. did not call the police until she returned home and told her husband what had happened. During the assault, M.D. suffered numerous ant bites from the denizens of the fire ant hill upon which she was lying. Tracy Shubert, a sexual assault nurse examiner (SANE) , noted ant bites on M.D.'s thighs and legs which were too numerous to count. The examiner also noted there was an abrasion with small cuts to the top of M.D.'s right foot. Shubert testified that M.D. was "very withdrawn and crying" at the time of the examination. A vaginal swab of M.D. taken by Shubert during the examination revealed semen consistent with Baxter's DNA. The SANE discovered neither any bruising to M.D.'s inner thighs or buttocks nor any vaginal trauma. Officer Herbert Hayter, who was the first police officer to respond to the call, testified that M.D. was "very, very upset." BAXTER'S CLAIM OF CONSENSUAL SEX Baxter argues that no rational juror could have found beyond a reasonable doubt that Baxter committed sexual assault, maintaining that the evidence is factually insufficient to show that M.D. did not consent to the sexual conduct in which the parties engaged. A person commits the offense of sexual assault if the person "(1) intentionally or knowingly: (A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent . . . ." Tex. Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 2007). Baxter claims that the evidence concerning lack of consent is insufficient because M.D. failed to (1) return to her relatives' house when Baxter began to accompany her, (2) seek help when she had the opportunity during the walk, (3) elicit her husband's aid when he drove by her on the street, (4) seek aid at the Tyler Police Department prior to the incident, and (5) use Velasco's offered cellular telephone to call the police at the scene of the incident after it occurred. Baxter cites as further evidence the lack of bruising of M.D. as detected by the examiner and the fact that the alley in which the incident occurred led away from--not toward--M.D.'s home (evidence, he maintains, that M.D. and Baxter were jointly looking for a private area in order to engage in sexual intercourse). According to Baxter, M.D. consented to the sexual activity and accused Baxter of rape merely to escape the consequences of her infidelity after having been discovered. Baxter argues that if M.D. had wanted to seek help, she had several opportunities to obtain help which she did not pursue and that M.D. did not call the police until she decided she could escape the consequences of her infidelity with a stranger by claiming she was raped. Finally, Baxter claims that his own behavior was inconsistent with having raped M.D., asserting that he did not flee the scene upon Velasco's arrival but, rather, calmly walked away and allowed Velasco to get a good look at his face. Baxter argues it is likely that M.D. had screamed because the fire ants were biting her, not because she was being assaulted. Baxter cites Robinson v. State, 989 S.W.2d 456 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd), in support of his argument that the evidence is factually insufficient. In Robinson, the defendant engaged a female attendant of a convenience store in conversation for about an hour. Id. at 457. When the attendant walked into a back room, Robinson followed her, told the attendant "[d]on't make me hurt you" and ordered the attendant to remove her pants. Id. The attendant unbuttoned the top button, Robinson removed her pants, and Robinson engaged in sexual intercourse with the attendant. Id. at 457-58. As he was leaving, Robinson asked the attendant if she would call the police and the attendant responded "no." Id. at 458. When Robinson was gone, the attendant locked the store and called the police. Id. The attendant's inner legs and thighs were bruised and swollen. Id. at 462. Robinson argued on appeal that the attendant had consented by unbuttoning her pants. Id. The First District Court of Appeals found the evidence to be factually sufficient and affirmed the conviction. Id. at 463. Baxter argues that the evidence in this case is "much weaker" than the evidence in Robinson because Baxter did not explicitly or implicitly threaten Baxter with physical harm. We disagree. ANALYSIS It is undisputed that a sexual act occurred; the relevant inquiry is whether the victim consented to the sexual activity. The Texas Penal Code provides that a sexual assault is without the victim's consent if the actor compels the person to submit or participate by the use of physical force or violence. Tex. Penal Code Ann. § 22.011(b)(1) (Vernon Supp. 2007). In this case, M.D. testified that Baxter grabbed her, covered her mouth with his hand, and threw her to the ground atop a fire ant bed. As such, there was evidence that Baxter actually used physical force, even though he did not first threaten to use physical force. See Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.--San Antonio 1999, no pet.) (holding a rational trier of fact could have found use of force when defendant immobilized the victim with his weight). Further, M.D. testified that she did not consent to the sexual acts and that she "was just crying the whole time, hoping that somebody would have heard me screaming when I was running." During the sexual assault examination, M.D. told Shubert she had told her assailant "no" and screamed during the rape. See Brown v. State, No. 06-05-00096-CR, 2005 Tex. App. LEXIS 8891 (Tex. App.--Texarkana Oct. 28, 2005, pet. ref'd) (mem. op., not designated for publication). When viewed in a neutral light, the evidence supporting the verdict is not so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. The fact that M.D. did not seek help prior to the rape does not preclude a finding that the sexual activity was nonconsensual. M.D. testified that she was unfamiliar with the area and did not see the police station sign. Shubert testified that based on her training and experience, the lack of vaginal trauma does not necessarily mean the individual was not raped. Further, the fact that M.D. did not call the police until she arrived at a safe, familiar location (her home), does not suggest that M.D. consented to the sex. A jury could conclude such an action was reasonable under the circumstances. Although fleeing the scene is often a sign of guilt, the mere fact that Baxter says that he did not flee is not substantial evidence that he was innocent. Further, the evidence that Baxter calmly walked away is controverted. M.D. testified that Baxter left "as fast as he could." Although Velasco testified he saw Baxter leaving with his bicycle, Velasco's testimony does not specify that Baxter was calm or walking slowly. The jury alone judges the credibility of witnesses, the weight to be given their testimony, and the reconciliation of evidentiary conflicts. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). The great weight and preponderance of the evidence does not indicate that M.D. consented. The evidence is factually sufficient to sustain the conclusion of the jury. For the reasons stated, we affirm the judgment. Bailey C. Moseley Justice Date Submitted: November 12, 2007 Date Decided: November 21, 2007 Do Not Publish