Opinion issued May 7, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00714-CR ——————————— ELLIOTT JACOBY BAPTISTE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1672403
OPINION
A jury convicted appellant, Elliott Jacoby Baptiste, of sexual assault. See
TEX. PENAL CODE § 22.011(a)(1)(A). He was sentenced to 15 years’ imprisonment.
In two issues, Baptiste contends that (1) the evidence is not legally sufficient to support his conviction, and (2) the trial court erred by denying his motion to testify
free from impeachment by prior convictions. We affirm.
Background
The complainant (“M.T.”) testified that, in August 2019, she and her three
older sisters, Keiaira, Ania, and Andrea, were at Keiaira’s house. Andrea and her
four children lived with Keiaira, and Ania lived nearby. Keiaira suggested that
M.T. accompany her to a nightclub to celebrate M.T.’s nineteenth birthday the next
day. M.T. testified that she did not want to go, but Keiaira insisted. M.T. was
nervous because she had never been to a nightclub. She decided to go for only a
short time because she had to work the next morning, and she had an infant child.
M.T. got ready in her sister Andrea’s room. Andrea and Ania helped M.T.
with her hair and make up. M.T. left her infant daughter with Andrea and Ania and
went with Keiaira. Keiaira’s boyfriend drove the two sisters and his friend,
Baptiste, to the club. On the way, M.T. did not interact with Baptiste.
M.T. testified that, on the way to the club, Keiaira pressured her to take an
“XO” pill. M.T. did not want to take the drug because she needed to go home and
breastfeed her baby. M.T. attempted to give the pill back to Keiaira, but Keiaira
would not take it back. M.T. acted as if she had swallowed the pill, but instead, she
put it in the back seat pocket.
2 M.T. testified that she did not drink any alcohol or take any drugs before
going into the club. She testified that she drank cranberry juice and water at the
club, and she did not remember consuming any drugs or alcohol there. As the night
went on, M.T. became dizzy and lightheaded. She went to the bathroom and sat on
the floor. Keiaira came to get her, and M.T. told her she wanted to go home. M.T.
left the bathroom and went to sit in a booth with Keiaira. M.T. testified that she did
not remember details of the night after that point. She testified that she believed
Keiaira put drugs in her drink.
The next thing M.T. remembered she was on the carpeted floor of the
hallway outside of Andrea’s bedroom at Keiaira’s house. M.T. felt something
heavy on top of her. M.T. gripped the carpet to try to move, but she could not. She
was naked below the waist. She could hear a male voice but could not see his face.
The person whispered in her ear and asked if she liked it. She felt a man’s penis
moving in and out of her vagina.
M.T. next remembered a flashlight shining in her face and being woken up
by her sister Ania. She remembered Ania pulling her up off the hallway floor
outside of Andrea’s room and throwing her in Andrea’s room. Keiaira, Andrea,
and Ania got into a fight, screaming, and throwing things at each other. Andrea
gave M.T. some clothes and helped M.T. down the stairs and outside to the curb.
3 M.T. testified that her memory of the rest of the day is also hazy. She
remembered riding in an ambulance and being asked questions at Ben Taub
Hospital but not whether she responded to them. Eventually, as the day went on,
she started to become more aware. After completing a sexual assault examination
at the hospital, she went home to her mother’s house.
M.T. testified that at first, she did not return a detective’s phone calls about
the case. She felt like everyone was blaming her for what had happened.
Eventually, she responded, and a detective came to her house. She was shown a
photo lineup, and she picked out the person who had assaulted her.
Keiaira also testified at trial. According to Keiaira, M.T., Keiaira, Keiaira’s
then boyfriend, and Baptiste all consumed alcohol before going to the club.
Keiaira’s boyfriend drove them to the club, and each of the four took an “XO” pill
in the car. Keiaira knew “XO” to be ecstasy. Keiaira testified that Baptiste and
M.T. did not interact on the way to or at the club. M.T. sat next to Keiaira in a
booth at the club.
Keiaira testified that when they left, M.T. was intoxicated and needed help
into the car. On the way home, M.T. was “real slumped” and acting tired. M.T.
rested her head on Baptiste’s shoulder on the drive home and went to sleep. The
jury viewed a recording of a Snapchat video that Keiaira took on the way home
4 from the club. In the video, M.T.’s head is on Baptiste’s shoulder. She appears to
be asleep.
When they got home, Keiaira gave M.T. blankets and pillows and suggested
she sleep in the hallway outside the two upstairs bedrooms. As she went to her
bedroom, Keiaira saw Baptiste walking downstairs. She thought he would sleep
downstairs.
Keiaira next heard screaming and crying. She walked out of her room to see
M.T. in the hallway. M.T. was wailing and had no clothes on below the waist.
Baptiste was standing over her with his pants down. Keiaira could tell her sister
was hurt. M.T.’s body was “balled up,” and the sisters helped her get up. Keiaira
and her boyfriend started beating up Baptiste, and he left. Keiaira then got into a
fight with Ania and Andrea. According to Keiaira, Ania and Andrea were mad at
her because she had taken M.T. to a club and introduced her to Baptiste. One of
them called the police, and Keiaira kicked her sisters out of her house.
Ania testified that she lived a few houses down from Keiaira, and she kept
M.T.’s infant daughter while M.T. went to the club with Keiaira. The next
morning, about 6:00 a.m., Ania went to Keiaira’s house to give the baby back to
M.T. Ania went upstairs looking for M.T. She found M.T. covered in blankets on
the floor in the hallway. A man was lying behind her. M.T. was unresponsive as
Ania tried to wake her up. Ania needed M.T. to wake up and take the baby so that
5 Ania could go to school. Then, Ania heard M.T. saying “help me” and could tell
her little sister was in trouble. She quickly put M.T.’s baby in the bedroom with
Andrea and “yanked” M.T. off the floor. Ania testified that when she did, she
separated M.T. from the man who was behind her. She testified that pulling M.T.
away removed the man’s erect penis from inside of M.T. M.T. was naked from the
waist down. The man was wearing his clothes, but his pants were pulled down,
exposing his penis. The man immediately left Keiaira’s house.
Ania tried to get M.T. to talk but she was unresponsive and not herself. Ania
brought M.T. to Andrea for help, and then Ania went to talk to Keiaira about what
had happened at the club. Ania was angry at Keiaira. They got into a fight, yelling
and shoving each other. The police were called.
Ania and Andrea helped M.T. put on some sweatpants. They attempted to
make her vomit, but it did not work. Keiaira ordered all three of them out of her
house, and they went to the curb. It was early morning, and the sun was not yet up.
Andrea’s testimony was similar to Ania’s. Andrea testified that when they
found M.T. at the top of the stairs, she was under covers and not awake. M.T.
looked very drunk or drugged, and she could not hold her head up. The sisters
realized a man was having sex with M.T. He got up and ran out of the house.
Andrea then helped M.T. put on some clothes. The father of Andrea’s children,
who Andrea did not remember arriving at the house, helped M.T. down the stairs
6 and out to the curb. M.T. could not walk on her own. According to Andrea, M.T.
could not remember anything, including where her belongings were.
The jury heard from the responding police officer. He testified that he
responded to a domestic disturbance call about 6:00 a.m., and he arrived at the
house within four minutes. He found M.T. sitting on the curb with her two sisters,
Andrea and Ania. The two sisters were concerned about M.T.’s condition. M.T.
was confused, appeared to be intoxicated, and could not stand up. M.T. was
incoherent and could not provide a statement. She was barely responsive to
questions and had no recall. The responding officer also met with Keiaira, who
stayed either near the front door or inside the house. She was not cooperative.
M.T. went to the hospital in an ambulance. The father of Andrea’s children
accompanied M.T. The responding officer followed and stayed with M.T. for hours
until the forensic nurse arrived. During the officer’s testimony, the jury viewed his
body-worn camera video. The video depicts M.T. at the curb, unable to respond
and slurring her words. She could not stand. She could barely say her name, and
she struggled to tell her sister where her identification could be located.
The jury also saw video of the officer following M.T. to the hospital, and
M.T. on a hospital gurney. When a nurse asks her basic questions, M.T.’s
responses are slurred. M.T. mostly sleeps or rests on the gurney. She also vomited.
The officer was with M.T. for several hours and was never able to get a statement
7 from M.T. because she remained incoherent. The officer left when the forensic
nurse arrived.
The police officer who investigated the case testified. He reviewed the
evidence collected by the responding officer, including statements from the sisters,
body-worn camera video, and forensic examination details. At one point, the case
became inactive because he could not name a suspect. M.T. did not respond to the
investigating officer’s calls or emails, and Keiaira refused to provide the name of
the suspect. The officer testified that this is common in sexual assault
investigations, and that sometimes the complainant blames herself.
Eventually, M.T. reached out to the officer and was willing to cooperate in
the prosecution of the crime. The case was reactivated. M.T. did not know the
name of the person who had assaulted her, but she knew it was her sister’s
boyfriend’s friend. The investigating officer put together a photo array, and, per
protocol, had another detective present it to M.T. M.T. identified Baptiste in the
photo array. After the identification, the investigating officer obtained a search
warrant for a buccal swab. The investigating officer identified Baptiste in the
courtroom as the person from whom he obtained the buccal swab pursuant to a
search warrant.
A sexual assault nurse examiner testified as to the sexual assault
examination (“SANE” exam) conducted on M.T. She testified that when she
8 encountered M.T. at the hospital, M.T. was sleepy. The nurse testified that M.T.
told her that she had been at a party with her sister. M.T. told the nurse that she did
not want to drink because she was breastfeeding. A few friends brought her drinks,
and she threw up. She did not remember getting home or how she had changed
clothes. She remembered her sisters yelling and one of them picking her up and
putting her in a room.
M.T. told the nurse that she was concerned something happened. When the
nurse asked M.T. what she thought had happened, M.T. closed her eyes, turned to
her side, and stopped answering questions. The nurse attempted to wake her up,
but M.T. only moaned and mumbled. The nurse instructed M.T. that to continue
the exam, M.T. needed to be fully awake and alert. M.T. shook her head no,
indicating she wanted to stop the exam. The nurse testified that M.T.’s state at 9:00
a.m. would potentially prevent her from consenting to sex a few hours earlier.
Another sexual assault nurse testified that she completed the SANE exam
later in the afternoon at M.T.’s request. M.T. told her that her sister’s boyfriend’s
friend forced his penis into her vagina. M.T. told the nurse that her sister put a pill
called “XO” in her drink. The nurse asked M.T. several questions and completed
the physical examination for the SANE exam. The nurse described the evidence
she collected for the jury, including swabs of various areas of M.T.’s body and a
urine sample.
9 A forensic toxicologist testified that M.T.’s urine tested positive for
amphetamine, methamphetamine, and delta-9 carboxy THC. He testified to the
effects each of these drugs could have on a person. He said that the combination of
these drugs could have an intoxicating effect.
A DNA analyst from the Houston Forensic Center testified as to the results
of DNA testing comparing Baptiste’s buccal swab to swabs taken from M.T.
during the SANE exam. The analyst testified that Baptiste could not be excluded as
a contributor to the DNA found on M.T.’s perineal area, neck, and breast swabs.
The jury found Baptiste guilty of sexual assault. He was sentenced to 15
years’ imprisonment.
Sufficiency of the Evidence
Baptiste argues that the evidence is not legally sufficient to prove that he
lacked M.T.’s consent for sexual intercourse. Specifically, he argues that the
evidence is insufficient to establish either that he used physical force or that he
knew M.T. was unaware a sexual assault was occurring.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light
most favorable to the jury’s verdict to determine whether any “rational trier of fact
10 could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319; Gutierrez v. State, 668 S.W.3d 46, 49 (Tex. App.—
Houston [1st Dist.] 2022, pet. ref’d). Our role is that of a due process safeguard,
and we consider only whether the factfinder reached a rational decision. See
Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020,
pet. ref’d); see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016)
(observing that reviewing court’s role on appeal “is restricted to guarding against
the rare occurrence when a fact finder does not act rationally”) (quoting Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)).
In a sufficiency review, we consider the “combined and cumulative force” of
the circumstances pointing toward guilt. Clayton v. State, 235 S.W.3d 722, 778
(Tex. Crim. App. 2007). “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor,” and “the standard of review on
appeal is the same for both direct and circumstantial evidence cases.” Kuciemba v.
State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004)). The trier of fact is the sole judge of the
weight and credibility of the evidence. See Zuniga v. State, 551 S.W.3d 729, 733
(Tex. Crim. App. 2018). Thus, when performing an evidentiary sufficiency review,
we may not reevaluate the weight and credibility of the evidence and substitute our
judgment for that of the fact finder. Gutierrez, 668 S.W.3d at 50. A reviewing
11 court, faced with a record of historical facts supporting conflicting inferences, must
presume that the trier of fact resolved any such conflict in favor of the prosecution
and must defer to that resolution. Jackson, 443 U.S. at 326. When there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous. Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
A person commits the offense of sexual assault if he, intentionally or
knowingly, causes the penetration of the sexual organ of another person by any
means, without that person’s consent. TEX. PENAL CODE § 22.011(a)(1)(A). The
Penal Code sets forth several circumstances in which a sexual act occurs without a
person’s consent. See id. § 22.011(b)(1)–(14). Relevant here, a sexual assault is
without consent if “the actor compels the other person to submit or participate by
the use of physical force, violence, or coercion” or “the other person has not
consented and the actor knows [that] the other person is unconscious or physically
unable to resist” or “the other person has not consented and the actor knows [that]
the other person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(1),
(3), (5). The jury was charged on these three statutory provisions.
B. Analysis
Baptiste admits to having engaged in sexual intercourse with M.T., but he
disputes that he did so without her consent. We note that in his appellate brief, he
argues that the evidence is not sufficient because the State did not establish that he
12 used physical force or that he knew M.T. was unaware the sexual assault was
occurring. See TEX. PENAL CODE § 22.011(b)(1), (5). Baptiste does not address the
third manner or means alleged in the indictment. Specifically, Baptiste’s brief does
not address whether the evidence was sufficient to prove lack of consent because
M.T. was unconscious or physically unable to resist. Id. § 22.011(b)(3). The jury
was charged on three different manner and means of proving lack of consent. The
jury need only find one manner and means occurred beyond a reasonable doubt to
find that the sexual intercourse was nonconsensual, and the jury did not have to
agree on the manner and means by which Baptiste overcame M.T.’s lack of
consent. Brown v. State, 580 S.W.3d 755, 762–63 (Tex. App.—Houston [14th
Dist.] 2019, pet. ref’d).
While the State need not prove all three manner and means, the record
includes ample testimony for each of them. M.T. testified that she became dizzy
while at the club and that her memory became hazy. She testified that she did not
remember how she got home. She testified that her first memories after the club are
waking up gripping the carpet, trying to move herself, with a man on top of her.
She testified that she could not walk on her own out of Keiaira’s house and that she
has vague memories of being transported to the hospital and responding to the
nurse’s questions.
13 M.T.’s sisters testified similarly. Keiaira testified that M.T. was drunk
leaving the club and required assistance to walk. She testified that M.T. was asleep
on the way home from the club, and the jury saw a Snapchat video showing M.T.
slumped over on Baptiste. The sisters testified that when they discovered M.T. and
Baptiste in the hallway, M.T. was unresponsive, naked from the waist down, and
could not move on her own. The jury saw the responding police officer’s body-
worn camera video showing M.T.’s incoherence that lasted for much of the day.
The medical records from the forensic exam show that M.T. told the nurse that the
assailant forced himself inside of her.
The evidence established that M.T. had not consented to sexual intercourse
and that Baptiste knew M.T. was unconscious or physically unable to resist or
alternatively, that M.T. was unaware the sexual assault was occurring. TEX. PENAL
CODE § 22.011(b)(3), (5); Wilson v. State, 473 S.W.3d 889, 899 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d (holding jury could infer defendant knew
complainant was unaware of sexual intercourse and did not consent when
complainant was intoxicated and fell asleep); see also Flores v. State, No. 01-20-
00213-CR, 2022 WL 961554, at *9 (Tex. App.—Houston [1st Dist.] Mar. 31,
2022) (mem. op., not designated for publication) (holding jury was entitled to find
appellant knew during sexual assault that complainant was unconscious, physically
unable to resist, or unaware appellant was engaging in sexual intercourse with her
14 when jury heard testimony that complainant did not consent and had “blacked out”
due to alcohol consumption), aff’d, 679 S.W.3d 695 (Tex. Crim. App. 2023);
Mauldin v. State, No. 05-09-00513-CR, 2010 WL 936695, at *4 (Tex. App.—
Dallas Mar. 17, 2010, pet. ref’d) (mem. op., not designated for publication) (stating
jury could reasonably conclude complainant did not consent when she testified that
she did not consent to any sexual act with appellant, that she blacked out several
times during the evening, and that she awoke to appellant on top of her with his
penis inside of her).
There was also sufficient evidence to prove lack of consent by force. TEX.
PENAL CODE § 22.011(b)(1). The jury heard testimony that M.T. awoke to the
weight of a body on top of her. She testified that she gripped the carpet and tried to
move, but she could not do so. Her sisters testified that they heard her wailing as if
she was in pain and asking for help. Ania testified that she physically pulled M.T.
and Baptiste apart, removing Baptiste’s penis from M.T.’s vagina. M.T. told the
forensic nurse examiner that the assailant forced his penis inside of her.
To the extent there is any discrepancy between the testimony of the
complainant and the other witnesses, we note that the jury was the sole judge of the
credibility of the witnesses at trial, and we defer to the responsibility of the fact
finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable
inferences from the facts. Jackson, 443 U.S. at 319, Wilson, 473 S.W.3d at 899.
15 Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that the jury could have found beyond a reasonable doubt that the
complainant did not consent to the penetration of her sexual organ by appellant.
TEX. PENAL CODE § 22.001(a)(1)(A). Accordingly, we hold that the evidence is
sufficient to support appellant’s conviction for sexual assault.
We overrule Baptiste’s first issue.
Denial of Theus Motion
In his second issue, Baptiste contends that the trial court erred by denying
his motion to testify free from impeachment examination about his prior
convictions (his “Theus motion”). Evidence of a witness’s prior conviction may be
admitted for purposes of impeachment if the crime was a felony or a crime of
moral turpitude, and the court determines that the probative value of admitting the
evidence of the conviction outweighs its prejudicial effect. TEX. R. EVID. 609(a).
The Court of Criminal Appeals has set out a list of non-exclusive factors courts
should use to weigh the probative value of a conviction against its prejudicial
effect. See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). Such
factors include (1) the impeachment value of the prior crime, (2) the temporal
proximity of the past crime relative to the charged offense and the witness’s
subsequent criminal history, (3) the similarity between the past crime and the
charged offense, (4) the importance of the witness’s testimony, and (5) the
16 importance of the witness’s credibility. Id. Baptiste contends that, according to the
Theus factors, the prejudicial effects of his prior convictions outweigh their
probative value for impeachment, and thus, the trial court denied his motion in
error.
The convictions addressed with the trial court included the following:
January 2016 conviction for theft by check, January 2015 conviction for assault of
a family member, January 2014 conviction for burglary of a motor vehicle,
October 2009 conviction for aggravated robbery. After the court denied Baptiste’s
motion, Baptiste did not testify, and both sides rested.
Baptiste has not preserved this claim for our review. To preserve for review
a claim of improper impeachment with a prior conviction, the defendant must
testify. Jackson v. State, 922 469, 479–80 (Tex. Crim. App. 1999) (following Luce
v. United States, 469 U.S. 38 (1984)). In Jackson, the Court of Criminal Appeals
adopted the reasoning in Luce v. United States which required the defendant to
testify. Id. The Court reasoned that otherwise an appellate court “would [be]
required to engage in the difficult task of speculating about (1) the precise nature
of the defendant’s testimony, (2) whether the trial court’s ruling would have
remained the same or would have changed as the case unfolded, (3) whether the
government would have sought to impeach the defendant with the prior conviction,
(4) whether the accused would have testified in any event, and (5) whether any
17 resulting error in permitting impeachment would have been harmless.” Jackson,
992 S.W.2d at 479–80; Marett v. State, 415 S.W.3d 514, 516 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (applying Jackson and Luce and holding defendant who
did not testify yet made bill of exception denying he committed the underlying
crime of previous conviction did not preserve issue for appellate review). To avoid
such difficulties, the error is preserved only if the defendant testifies. Jackson, 992
S.W.2d at 480; Luce, 469 U.S. at 43.
Baptiste argues that the error is preserved because he supplied the trial court
with an offer of proof. Before the punishment phase of trial began, appellant’s trial
counsel approached the trial court for a “housekeeping matter.” Counsel verified
that the trial court denied his Theus motion the previous day and then made an oral
proffer as to what he anticipated Baptiste’s testimony would have been. After the
proffer, the parties agreed upon a punishment, and the trial court sentenced
Baptiste to fifteen years in prison.
In Luce, the Supreme Court anticipated that a defendant who wished to
preserve error but who was unwilling to suffer impeachment with a prior
conviction might proffer a statement for the record on appeal. Luce, 469 U.S. at 41.
The Court held that such a proffer was insufficient. Id. at 41–42. The Court
reasoned that any trial court ruling on a motion to testify without impeachment “is
subject to change when the case unfolds” particularly if the actual testimony differs
18 from the defendant’s proffer. Id. at 42. “Because it is impossible to conduct a harm
analysis if the defendant has not testified, and a rule of automatic reversal would
encourage abuse, a defendant must testify subject to cross-examination and
possible impeachment to preserve error on appeal.” Marrett, 514 S.W.3d at 516.
Baptiste did not testify; thus, it is impossible to determine whether the
probative value of his testimony would have exceeded its prejudicial effect.
Baptiste failed to preserve for appellate review his objection to the admissibility of
his prior convictions as impeachment evidence. Jackson, 992 S.W.2d at 480. We
do not consider Baptiste’s challenge to the trial court’s denial of his Theus motion.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
Publish. TEX. R. APP. P. 47.2(b).