Richard Lee Mayfield v. State ( 2011 )

NUMBER 13-10-233-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICHARD LEE MAYFIELD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Vela
A jury found appellant, Richard Lee Mayfield, guilty of attempted sexual assault.
See TEX. PENAL CODE ANN. § 15.01(a) (West 2003); § 22.011(a)(1) (West Supp. 2010).
After finding appellant had two prior felony convictions,1 the jury assessed punishment at
fifty years' imprisonment. By three issues, appellant argues: (1) the evidence is legally
insufficient to support his conviction; (2) the trial court erred by failing to include the
elements of sexual assault in the application paragraph of the jury charge; and (3) the
indictment failed to allege the elements of sexual assault. We affirm.
I. FACTUAL BACKGROUND
In the morning of June 25, 2009, M.G. went to a Wal-Mart in Edinburg, Texas, and
after making a purchase, returned to her vehicle. While sitting in the driver's seat with
her door open, appellant, who was wearing a baseball cap pulled down low, lunged at
her. His upper body was inside her car, and she was pinned inside. She started
screaming; however, appellant grabbed her left leg and ran his hands up her leg, pulling
up her skirt at the same time. M.G. testified appellant's hands came to a stop "close to
the top of my leg right there in the groin." When appellant asked her, "Do you want to
f**k?," she said, "no" and continued screaming. She testified "it sounded like he was
laughing . . . like a demon possessed creature." She kicked him two or three times with
her high heels, and he ran away. As she backed up her car, she saw appellant "running
very quickly, sneaking, like kind of ducking," and then get into an old, white car with a
navy blue vinyl roof. As appellant drove away, she memorized his license-plate number
and gave it to the 9-1-1 operator.
Shortly thereafter, the police determined the license-plate number was registered
to Richard L. Mayfield, whose address was 1014 South 10th Street, Apartment 1 in
1
The indictment's enhancement paragraphs alleged previous convictions for aggravated assault
and aggravated robbery.
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Edinburg. The police took M.G. to the apartment and allowed her to look at appellant.
She testified that even though appellant was not wearing a baseball cap, she "was 99.9
percent sure it was him." She testified that when appellant put on a cap, she told the
police officer: "That's him, but it's a different cap." When M.G. asked appellant if he
was the person who had just attacked her, he said: "No, I've never seen you before in
my life." When the prosecutor asked M.G. if his voice sounded like her assailant's voice,
she said, "Basically, yes, but not with that spooky tone that he used when he asked that
vulgar question." When the prosecutor asked M.G., "And [at] that time, [M.G.], were you
positive that the man that was before you was the same man who attacked you at the
Wal-Mart parking lot?," she said, "Yes, I was." During the guilt-innocence phase of
appellant's trial, M.G. identified appellant, who was seated in the courtroom, as the
person who attacked her in the Wal-Mart parking lot. When the prosecutor asked her,
"[D]o you believe you were going to be sexually assaulted that day?," she said, "Yes.
Because of the question that he asked me, and his hands on my leg it was obvious that he
wanted me, not my purse."
On cross-examination, when defense counsel asked M.G., "Did this individual get
inside the car with you?", she said, "His upper body was inside the car, and his face was
right in front of mine." She said, "It was a surprise attack" and "I was looking mainly into
his eyes."
Investigator Oscar Trevino testified that on the day of the incident, appellant
waived his Miranda warnings and gave a written statement about what had happened
earlier that day. In his statement, appellant stated, in relevant part, that:
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This morning I went to the Wal-Mart in Edinburg on 107. I went there to
buy some medicine for jock itch and athelete's [sic] foot. Before I could go
inside the store I saw a lady walking out that looked like an ex-girlfriend of
mine named Julie. She was wearing a long ankle length dress. I followed
her to her car. She got inside the car and I went up to her and poked her on
her side thinking that it was Julie. I called her by the name Julie and she
got scared and kicked me. I got scared and left cause I didn't want to
bother someone I didn't know. I was wearing a dark blue uniform with a
name tag and a black cap. I left the parking lot and went home. I was
driving my brother's car, a white 1993 Chrysler with a blue canvas top. The
police showed up at my house and questioned me. By this time I had
already taken off my uniform because I was going to shave and shower. I
was going to leave. I had somewhere to go. They brought the same lady
to look at me. She said that I looked somewhat like the person they were
looking for. I denied being at Wal-Mart. I told the police that I had not
been there because nothing happened. I just kept denying the accusation
because I didn't do anything to her.
Investigator Trevino testified that prior to taking appellant's statement, he
questioned appellant about what had happened. Investigator Trevino stated appellant
"denied ever being at Wal-Mart. He denied ever leaving his home. He denied having
any contact with any female, or anybody, whatsoever." Investigator Trevino also asked
appellant about "Julie, to make a comparison as to Julie and the victim to see if there was
any similarities between them. I asked him if he could give me her full name and address
and telephone number so I could get in contact with her and speak with her. . . ."
However, appellant did not provide any information about her except for her first name,
"Julie," and that she was a girlfriend "from way back when." Investigator Trevino
explained that "I was hoping to get a hold of this lady to see if she looked exactly like the
victim to where there could have been a mistaken identity or something as to the effect of
what he was alleging here on his statement. But that didn't happen."
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Defense counsel called Officer Jorge Gomez as a witness. Officer Gomez
testified he recovered a navy blue shirt, a ball cap, a belt, and a pair of pants from the
apartment where appellant lived. Defense counsel introduced these items into
evidence. The left pocket of the shirt had a tag, which stated "Richard." On the right
side, the shirt said, "Royal Freight Pharr, Texas."
Appellant did not testify during the guilt-innocence phase of his trial.
II. DISCUSSION
A. Sufficiency of the Evidence
In issue one, appellant challenges the sufficiency of the evidence to support his
conviction.
1. Standard of Review
"When reviewing a case for legal sufficiency, we view all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Winfrey v. State,
323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). Accordingly, "we 'determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.'" Id. at 879 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). "It has been said quite appropriately, that '[t]he appellate
scales are supposed to be weighted in favor of upholding a trial court's judgment of
conviction, and this weighting includes, for example, the highly deferential standard of
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review for legal-sufficiency claims.'" Id. (quoting Haynes v. State, 273 S.W.3d 183, 195
(Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S. at 319)). "We
must therefore determine whether the evidence presented to the jury, viewed in the light
most favorable to the verdict, proves beyond a reasonable doubt that appellant"
committed the crime for which the jury found him guilty. See id. "It is the obligation and
responsibility of appellate courts 'to ensure that the evidence presented actually supports
a conclusion that the defendant committed the crime that was charged.'" Id. at 882
(quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). In addition,
"'[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that
evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d 114, 116
(Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State, 125
S.W.3d 436, 443 (Tex. Crim. App. 2002).
A person commits the offense of sexual assault if the person intentionally or
knowingly (1) "causes the penetration of the anus or sexual organ of another person by
any means, without that person's consent," (2) "causes the penetration of the mouth of
another person by the sexual organ of the actor, without that person's consent," or (3)
"causes the sexual organ of another person, without that person's consent, to contact or
penetrate the mouth, anus, or sexual organ of another person, including the actor[.]"
TEX. PENAL CODE ANN. § 22.011(a)(1)(A)-(C). "A sexual assault under Subsection (a)(1)
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 . . . ." Id. § 22.011(b)(1).
Section 15.01(a) of the penal code provides that "[a] person commits an offense [of
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criminal attempt] if, with specific intent to commit an offense, he does an act amounting to
more than mere preparation that tends but fails to effect the commission of the offense
intended." Id. § 15.01(a).
2. Analysis
The evidence supporting the verdict showed that: (1) while M.G. was sitting in her
car with the door open; (2) appellant, who was wearing a baseball cap pulled down low,
lunged at her, pinning her in the car; (3) appellant grabbed her left leg, which was outside
the car, and ran his hands up her leg, pulling up her skirt at the same time; (4) his hands
came to a stop close to the top of her leg near her groin; (5) appellant asked her, "Do you
want to f**k?"; (6) appellant was laughing like a demon-possessed creature; (7) when
M.G. kicked him two or three times with her high heels, he broke off the attack and fled the
scene; (8) in his written statement, appellant stated that while he was at Wal-Mart, he saw
a woman who looked like his ex-girlfriend and that when the woman got inside her car, he
"poked" her on the side, thinking it was his ex-girlfriend; and (9) M.G. identified appellant
as the person who attacked her.
The contrary evidence showed that: (1) when M.G. asked appellant if he was the
person who had just attacked her, he said: "No, I've never seen you before in my life;"
(2) shortly after the incident, when a police officer arrived at appellant's apartment,
appellant told the officer he had not been to Wal-Mart earlier that day and that he had just
returned from work; (3) shortly after the incident, when M.G. identified appellant as her
attacker, he was not wearing a uniform; (4) video tape from a surveillance camera, which
recorded a view of the parking lot where M.G. claimed the incident occurred, did not show
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appellant assaulting M.G.; (5) no physical evidence connected appellant to the assault;
and (6) during his trial, appellant was wearing thick glasses; however, M.G. stated that the
person who assaulted her was not wearing glasses. In addition, appellant argues M.G.'s
testimony is not credible because: (1) she did not report the incident to Wal-Mart
employees; (2) she hesitated before reporting the incident to the police; and (3) her
out-of-court identification of appellant as her attacker was unreliable.
However, "a jury is permitted to believe or disbelieve any part of a witness'
testimony, including a defendant." Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim.
App. 1998). The jury found M.G.'s testimony to be credible, despite the fact that she
testified that appellant told her he had never seen her before. After viewing all of the
evidence in the light most favorable to the verdict, we hold a rational trier of fact could
have found beyond a reasonable doubt that appellant committed the offense of attempted
sexual assault of M.G. Issue one is overruled.
B. Jury Charge
In issue two, appellant contends the trial court erred by failing to include the
elements of sexual assault in the application paragraph of the jury charge. The
application paragraph stated:
Now if you find from the evidence beyond a reasonable doubt that on
or about JUNE 25, 2009, in Hidalgo County, Texas, the Defendant,
RICHARD LEE MAYFIELD, did then and there, with the specific intent to
commit the offense of sexual assault of [M.G.], do an act or acts, to-wit:
restrain her, pull up her skirt and tell her "Do you want to fuck", which
amounted to more than mere preparation that tended but failed to effect the
commission of the offense intended, then you will find the Defendant,
RICHARD LEE MAYFIELD, guilty of the offense of Attempted Sexual
Assault as charged in the indictment.
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Appellant asserts, without citing any authority, that the application paragraph was
defective for failing to set out the elements of sexual assault. In addition, he does not cite
any authority for the proposition that the application paragraph pertaining to an attempt to
commit an offense must include the elements of the offense which the defendant is
alleged to have intended to commit. "The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this issue constitutes a
waiver of the argument. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000)
(stating that failure to cite relevant authority waives error). Issue two is overruled.
C. The Indictment
In issue three, appellant contends the trial court erred by proceeding to trial on an
indictment that failed to allege the elements of a sexual assault. Appellant filed a motion
to quash the indictment; however, there is no indication in the record that he ever urged
this motion or that the trial court ever heard the motion. Because appellant did not obtain
a ruling on his motion, he has waived any error in the indictment. See Brosky v. State,
915 S.W.2d 120, 129 (Tex. App.—Fort Worth 1996, pet. ref'd) (holding that "[b]y failing to
obtain a ruling on the portions of the Motion to Quash pertaining to Count One of the
indictment, Brosky waived any error arising from Count One of the indictment."); Dowler
v. State, 777 S.W.2d 444, 448 (Tex. App.—El Paso 1989, pet. ref'd). Issue three is
overruled.
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III. CONCLUSION
We affirm the trial court's judgment.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of November, 2011.
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