eCases

• 
  
  
  
  
  
  
  
  
  
  
  
  
  
  COURT
  OF APPEALS
  EIGHTH
  DISTRICT OF TEXAS
  EL
  PASO, TEXAS
   
  KENNETH L. DRUMGOOLE,                            )
                                                                                )     
  No.  08-01-00055-CR
  Appellant,                          )
                                                                                )                    Appeal from the
  v.                                                                           )
                                                                                )     
  120th District Court
  THE STATE OF TEXAS,                                     )
                                                                                )     
  of El Paso County, Texas
  Appellee.                           )
                                                                                )     
  (TC# 20000D02171)
                                                                                )
   
   
  O
  P I N I O N
   
  Appellant Kenneth
  L. Drumgoole appeals from his conviction by the jury for aggravated assault
  with a deadly weapon and attempted aggravated sexual assault.  He was respectively sentenced on each count
  to 10 years=
  confinement and a $5,000 fine.  Appellant
  brings five issues on appeal: 
  (1)        Evidence is legally insufficient to
  prove he had either the specific intent to sexually assault the complainant or
  that he had proceeded beyond mere preparation;
   
  (2)        Evidence is factually insufficient to
  prove his actions were directed toward the completion of sexual assault;
   
  
  
  
  
  
  (3)        Appellant suffered ineffective
  assistance of counsel when the State put on undisclosed immunized testimony;
   
  (4)        The trial court erred in admitting
  undisclosed immunized testimony; and 
   
  (5)        The trial court erred in admitting Appellant=s statement.
   
  We will affirm.
  About midnight on
  April 7, 2000, Krystal Kehrman arrived home to her apartment.   After getting out of her car, she saw a man
  walk toward her and began to feel apprehensive, so she tried to get back in her
  car.  Before she could, something struck
  her on the head and she became very dazed.
  When she regained her focus, she was lying half way on the passenger seat,
  wedged in by the hand brake, and a man was seated on the driver=s side trying to start up her car.  Mrs. Kehrman began to scream for help, when
  the man punched her in the face, pulled her hair, and told her, AShut up, bitch.  I have a gun,@
  patting his jacket.  Afraid that she
  would be shot, Mrs. Kehrman stopped screaming.
  Mrs. Kehrman=s assailant continued to try to start
  her car, but, because the clutch was not pushed in, it would not start.  He commanded Mrs. Kehrman, AThis f---ing car isn=t starting.  Start this damn car, bitch,@ then again punched her and pulled her
  hair.  At this point, he put his hand on
  her leg and said, AOh, I am
  going to f--- you.@  Mrs. Kehrman believed he would rape her and
  renewed her cries for help, and the assailant pulled her hair, tried to choke
  her with his hands, and hit her on the head with what felt like an object, not
  his fist, just like the first time he hit her and she became dazed.  They continued to struggle, but when one of
  Mrs. Kehrman=s
  neighbors came outside, the man ran away, pursued by the neighbors.
  
  
  
  
  
  Jose Reyes, Jr.
  and Joseph Kehrman heard a woman screaming outside of their respective
  apartments.  Mr. Reyes saw a woman and a
  man struggling inside a car from his apartment and ran outside.  Mr. Kehrman also came out to investigate and
  saw a neighbor chasing someone around the corner and his wife screaming and
  crying.  She was bleeding from her
  head.  Both Mr. Kehrman and Mr.
  Reyes helped to chase the man from the parking lot and assisted in holding him
  until the police responded.  The man was
  identified as Appellant.
  Two rocks, which
  Mrs. Kehrman said had not been there before the attack, were found inside the
  car; one of them had a bloodstain on it.
  Officer Gregory Allen testified that rocks were capable of causing death
  or serious bodily injury and were deadly weapons.  
  After his arrest,
  Appellant signed a voluntary statement, in which he said he had been wandering
  inside an apartment parking lot when he saw a girl alone in a car.  He got two rocks and hit her on the upper
  part of the body as she got out of the car.
  When she began screaming, Appellant ran away but was caught by Asome guys.@  
  At trial,
  Appellant admitted assaulting Mrs. Kehrman but denied attempting or having the
  intent to rape her.  Appellant had
  intended to steal her car and sell off parts of it for drugs, and he had only Apushed@
  Mrs. Kehrman with the rock.  He disputed
  Mrs. Kehrman=s
  statement that he had touched her leg or said that he would Af--- her.@
  
  
  
  
  
  In reviewing the
  legal sufficiency of the evidence, this Court examines all of the evidence in a
  light most favorable to the verdict, both admissible and inadmissible, in order
  to determine whether any rational trier of fact could find the essential
  elements of the crime as alleged beyond a reasonable doubt.  Dewberry v. State, 

  4 S.W.3d 735

  , 740
  (Tex.Crim.App. 1999); Lyon v. State, 

  885 S.W.2d 506

  , 516 (Tex.App.--El
  Paso 1994, pet. ref=d).  Our duty is not to reexamine the evidence and
  impose our own judgment as to whether the evidence establishes guilt beyond a
  reasonable doubt, but only to determine if the findings by the trier of fact
  are rational.  

  Lyon, 885 S.W.2d at 516-17

  .  Any inconsistencies in the
  evidence are resolved in favor of the verdict.
  Matson v. State, 

  819 S.W.2d 839

  , 843 (Tex.Crim.App. 1991).  This standard of review applies equally to
  both direct and circumstantial evidence cases.
  Garcia v. State, 

  871 S.W.2d 279

  , 280 (Tex.App.--El Paso 1994, no
  pet.).
  
  In reviewing
  factual sufficiency, this Court views all evidence without the prism of Ain the light most favorable to the
  prosecution@ and sets
  aside the verdict only if it is so contrary to the overwhelming weight of the
  evidence as to be clearly wrong and unjust.
  Clewis v. State, 

  922 S.W.2d 126

  , 133 (Tex.Crim.App. 1996).  We defer to the fact finder=s determinations in reviewing the
  weight given to the evidence.  Id.  An appellate court cannot substitute its
  judgment for that of the fact finder=s
  and should not intrude upon the fact finder=s
  role as the sole judge of the weight and credibility of witness testimony.  Santellan v. State, 

  939 S.W.2d 155

  ,
  164 (Tex.Crim.App. 1997).
  
  

• Sign In
• Sign Up