Johnica Lynn Pryor v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2006
• Docket: 12-04-00301-CR
• Status: Published

Opinion

                NO. 12-04-00301-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHNICA LYNN PRYOR,   §          APPEAL FROM THE 8TH

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §          RAINS COUNTY, TEXAS

MEMORANDUM OPINION

            Johnica Lynn Pryor appeals his conviction for aggravated kidnapping, for which he was sentenced to imprisonment for thirty-eight years.  Appellant raises three issues on appeal.  We affirm.

Background

            Appellant was charged by indictment with the aggravated kidnapping of Serina Thompson.  Appellant pleaded guilty, and the matter proceeded to voir dire.  Prior to the commencement of voir dire proceedings, Appellant made the following objection:

The first motion I’d make, Your Honor, is an objection to the panel as a whole.  It is not a fairly mixed panel.  It is clear from viewing the panel that it is all white except for one potential juror who is black.  We have a black defendant in this case accused of raping a white woman, and this panel will deny my client of the opportunity to be tried by a panel of his peers.  And the selection of the jury panel does not reflect the racial mix of the community in Rains County, Texas.  So, we would ask that the panel be struck and a new panel be drawn that reflects correctly a fair mix among -- racially, in Rains County.

The trial court carried Appellant’s motion to strike the panel.  Appellant later made a motion to shuffle the jury panel, which the trial court granted.  Following voir dire, the matter proceeded to trial.

            The State called Rains County Chief Jailer Annette Foster as its first witness.  Foster testified with regard to the jail radio log for the shift scheduled from 3:00 p.m. on October 11, 2003 to 1:00 a.m. on October 12, 2003.  Foster testified that the log indicated that Unit 506 had responded to Appellant’s residence at 9:27 p.m. on October 11, 2003 regarding a call that Appellant had taken Thompson against her will.  Foster further testified with regard to a call sheet and stated that Crystal Willis walked into the lobby and reported that Thompson had been taken against her will.  Foster also testified that the log indicated that a 9-1-1 call was received from an unknown caller between 9:25 p.m. and 10:43 p.m. advising that Appellant “has made it home and is trying to fight.”  Finally, Foster stated that the call sheet showed that Unit 506 had taken Appellant into custody and was en route to the station by 11:42 p.m.  On cross examination, Foster testified that Appellant was in jail prior to the date in question and that Thompson had deposited forty dollars into Appellant’s commissary on October 7, 2003.  Foster further stated that her records indicated that Appellant sent Thompson a letter in November 2003 and that Appellant received two letters from Thompson’s address in December 2003.  Moreover, Foster testified that Thompson had come to the jail on more than one occasion and had visited Appellant on December 2, 2003.

            Angel Willis was the next witness to testify for the State.  Willis testified that Thompson had come to her residence on the night in question and that the two had planned to go to a club that night.  Willis further testified that Thompson was well dressed and that her hair was fixed.  Willis stated that she was in her room when Thompson opened the front door and found Appellant standing outside.  Willis further stated that Appellant tried to pull Thompson outside, but that Thompson pulled away exclaiming that she was not going anywhere with Appellant.  Willis testified that Appellant grabbed Thompson, either by her ear, the back of her neck, or her hair, and pulled her out of the house into the yard.  As Appellant pulled her away, according to Willis, Thompson called to her to call the police.  Willis returned from inside the house¹ to see Appellant pushing Thompson into his truck.  Willis stated that Appellant drove off with Thompson, who was screaming.  Willis made an in court identification of Appellant as the man who took Thompson from her house and stated that it did not appear to her that Thompson went with Appellant willingly.

            Willis went to the police station and reported to the deputy that Appellant had taken Thompson from her house.  Willis further made a written statement at the police station before returning home.  Willis testified that later that evening she received a phone call from Appellant’s sister, who told her that Thompson was at their house and wanted Willis to come over there. 

            Willis testified that when she arrived at Appellant’s sisters’ house, Thompson appeared distressed, upset, and worried as she spoke to someone on the telephone.  Willis stated that Thompson’s hair was “ruffled up” and her tee shirt was inside out.  Willis further stated that Thompson’s clothes were dirty.  Willis testified that a police officer came to the house and that she saw Thompson make a written statement.  A short time later, Thompson left with her sister, Cindy, and Willis returned home.  Willis stated that she later received a phone call from Cindy, who told her that Thompson had been raped and wanted Willis to take her to the hospital.

            Willis testified that she accompanied Thompson to the hospital and that Thompson was given an exam.  Willis stated that Thompson had bruises on her arms.  Willis further stated that she took Thompson back to Thompson’s sister’s house afterwards.

            Thompson testified as the State’s next witness.  Thompson stated that she lived with Appellant for seven years and that they had two children.  Thompson testified that she ceased living with Appellant in August 2003 and had moved in with her grandmother.  Thompson further testified that she had started seeing another man after leaving Appellant, which had upset Appellant, but that she still saw Appellant occasionally and had continued a sexual relationship with him.  Thompson stated that Appellant was continually calling her asking her to come back, but that she had stopped taking his calls about one week prior to the date in question. 

            Thompson related that on October 11, 2003, Appellant was waiting for her when she arrived at work.  When Thompson went to the police station, Appellant followed her.  Thompson had an officer escort her back to work.  Thompson testified that she went to Willis’s house that evening.  Thompson stated that as she opened the door to leave, she discovered Appellant standing outside.  Thompson stated that Appellant grabbed her and tried to get her into his truck, telling her that she was going to talk to him that night.  Thompson further stated that she kicked, screamed, and grabbed a pole in the front yard in an attempt to prevent going with Appellant.²  Moreover, Thompson stated that she screamed to Willis to call the police.  Thompson testified that as Appellant threw her into his truck, he continually hit her.

            According to Thompson, Appellant then drove her down a dark road while holding her head down.  Thompson testified that Appellant stopped the truck in an open field, the location as to which she was not certain.  Thompson stated that Appellant demanded to know with whom she was sleeping.  Thompson did not respond because “there was nothing to tell.”  Thompson further stated that whenever she did speak, Appellant hit her.

            Next, according to Thompson’s testimony, Appellant dragged her out of the truck, ripped her clothes off, tied her to the truck using a “net tailgate,” and raped her.  Thompson further related that Appellant kept asking her if she knew how to swim, telling her she was going to drown that night.  Thompson also testified that Appellant put something sharp to her throat and stated that he would cut her with a knife.  However, Thompson clarified that she did not know if the sharp object Appellant was holding to her throat was, in fact, a knife.

            Thompson testified that Appellant later drove them to his trailer house and told her to wait in the truck while he went inside to get his gun.  Thompson stated that she was scared.  Thompson further stated that Appellant’s sisters, Tamekia and Karenda Pryor, his aunt, Judy Fields, and his grandmother were standing in their front yard when they arrived.  They came over to the truck, and Karenda asked Thompson to get out of the truck.  Thompson stated that she went into their house with them and sat down on the couch.³  Thompson further stated that Appellant soon came to the house, but left when he was informed that the police were on the way. 

            Thompson testified that when her sister arrived at the Pryor house, she told Cindy she had been raped.  Thompson stated that she gave a written police report at the house, but that there were details omitted from it because, at the time, she was scared and wanted to go home.  Thompson further related that she later went to the hospital and received a sexual assault exam.

            Amber Welch testified as the State’s next witness.  Welch testified that she is a nurse’s aid and a coworker of Thompson’s sister.  Welch stated that she saw Thompson on the night of October 11, 2003 and that Thompson was dressed up and appeared happy and excited.  Welch further stated that Thompson’s hair was done and that she was wearing Abercrombie jeans, black dress shoes, and a tee shirt.  Welch testified that she next saw Thompson at Appellant’s sisters’ house later that night.  Welch further testified that Thompson, at that time, looked clueless and in shock, and did not speak to Welch.  Welch stated that Thompson was then wearing a dirty white tee shirt that was inside out and backwards.  Welch further stated that Thompson’s face was flushed as though she had been crying and that there were marks on the insides of her arms.  Welch related that Thompson told her that Appellant took her against her will, that he took her to the woods, and that he sexually assaulted her.

            The State’s final witness was Laura Bankston.  Bankston testified that she is a nurse in the emergency room at Greenville Presbyterian Hospital.  Although she is not certified as a Sexual Assault Nurse Examiner, she has thirty-nine years of experience and is a certified emergency nurse.  Bankston testified that when Thompson came to the emergency room, she was cooperative, but had a flat, “zombie like affect.”  Bankston further testified that Thompson had an abrasion to her forearms, her chest, her breast, her arm, and her back consistent with the photos in Bankston’s report, which was admitted into evidence.  Bankston further testified that Thompson’s arms looked as if something had been wrapped around them.  Bankston related that Thompson had tears and swelling in her vaginal area consistent with a sexual assault.  Bankston further stated that tearing such as Thompson had does not usually occur with consensual sex, although she agreed that some of the abrasions could have resulted were a person to have consensual sex on the ground in a pasture.  Bankston denied that the abrasions on Thompson’s arms could have been caused by a “little scuffle” as the abrasions did not look like hand prints.  Bankston testified that other injuries to Thompson’s arms were consistent with blows from fists.  Bankston further testified that some bruises sustained by Thompson may not have been visible at the time she visited the emergency room.  Bankston noted that the clothing log reflected that Thompson was wearing jeans, a tee shirt, and a black belt, but no panties or bra.  Bankston further stated that Dr. Scott Pierce, the attending physician, noted on Thompson’s chart that his impression from the exam was that Thompson very likely sustained “some forceful vaginal penetration.”  Bankston testified that based upon her thirty-nine years of emergency room experience, she had no doubt that Thompson was sexually assaulted.  Following Bankston’s testimony, the State rested.

            Appellant’s sister Tamekia Pryor testified as the first witness on Appellant’s behalf.  Tamekia stated that she received a telephone call from her mother informing her that Willis had reported that Appellant was holding Thompson against her will.  Tamekia went to her front door and saw that the police were in her front yard.  Tamekia testified that an officer asked her if Appellant was there, and that they left to look for Appellant upon her response that Appellant was not at the house.  Tamekia testified that shortly thereafter, Appellant and Thompson arrived in Appellant’s truck.  Tamekia stated that Thompson looked neither distressed nor excited.  Tamekia noted that Thompson was wearing tight jeans and a white tee shirt.  Tamekia stated that Thompson’s hair was neat and she was clean.  Tamekia further stated that Thompson went into the house with them and told them that Appellant took her to an unknown place, tied her up, and “drug” her.  Tamekia denied that Thompson told her that Appellant had raped her.  Tamekia further related that Thompson seemed confused while making her written statement to police and stated that she did not know “how to word” it.

            Judy Fields was the next witness to testify on Appellant’s behalf.  Fields testified that she was visiting her mother when her mother, who was listening to a police scanner, heard that Willis was at the police station making a complaint and that the police were looking for Appellant.  Fields further testified that she and her mother went to question Willis, and that Willis told them that Thompson had gone out to the truck to talk with Appellant, but had shouted out to Willis to call the police.  Fields stated that she was at the Pryor sisters’ house when Appellant returned with Thompson.  Fields further stated that when they went in the house, Thompson was very quiet and described how Appellant took her to an unknown piece of land, tied her up, and held something to her throat.  Fields noted that Thompson later stated that she and Appellant had sex.  Fields testified that she saw no bruises on Thompson’s body, but also admitted that she had not lifted Thompson’s shirt to notice the bruising apparent in the pictures in evidence.  Fields also described Thompson as confused while making a written statement to police.

            James Ehlers, a friend of Appellant, also testified on Appellant’s behalf.  Ehlers testified that he sometimes watched Appellant’s children when Thompson came by Appellant’s trailer following their separation.  Ehlers further testified that he was with Appellant on the evening in question.  Ehlers stated that he fell asleep on Appellant’s recliner and was awakened by Karenda, who was asking him where Appellant was.  Ehlers testified that he was sitting in the front yard with Appellant’s family members when Appellant arrived.  Ehlers saw Appellant go inside his house and heard Appellant state that he was going into his trailer to get his cell phone.

            Joe Porter, Appellant’s uncle, was the next witness to testify.  Porter stated that he saw Appellant and Thompson driving two vehicles by his shop on three occasions before October 11, 2003.  Porter further testified that he was outside of Appellant’s sisters’ house when Appellant arrived with Thompson on the night in question.  Porter related that Karenda Pryor called to Thompson to get out of the truck and that Thompson went into the house with Appellant’s sisters.

            Christopher Rhodes, another friend of Appellant, testified next on Appellant’s behalf.  Rhodes stated that he parked his camper next to Appellant’s trailer during August and September 2003.  Rhodes further stated that he saw Thompson bring her children over on a routine basis to stay with Appellant.  Rhodes testified that Thompson would let the kids play in the yard and go into the trailer with Appellant for thirty to forty-five minutes before she left for work.  Rhodes further testified that Thompson would bring Appellant food and visit with him for another hour after work when she came to pick up the children.⁴

            Mark Horrocks testified as Appellant’s next witness.  Horrocks testified that Appellant and Thompson met at Horrocks’s house a couple of days before the date in question.  Horrocks stated that he left Appellant and Thompson at his house for a couple of hours so they could be alone.  Horrocks further stated that he had let Appellant and Thompson use his house on at least four prior occasions.

            Deputy Sheriff Jerry Wayne Husky was the final witness called by Appellant.  Husky testified that he was the investigating officer on the case.  Husky stated that he arrested Appellant at around 11:00 p.m. on the night in question.  Husky testified that he searched for, but never found Thompson’s bra, panties, and shirt.  Husky further testified that he interviewed Thompson during his investigation and found some of the details she related to him during his investigation to be inconsistent with her initial written statement.  With regard to the phone records from the jail, Husky related that the records indicated one hundred forty-four calls in eighteen days from the jail to the Sonic,⁵ only eight of which were accepted.

            At the conclusion of Husky’s testimony, Appellant rested.  Following closing arguments, the case was submitted to the jury, and the jury began deliberating.  After deliberating for three and one half hours, the jury sent the following note to the trial judge: “We are at a six to six split.  It appears there will not be any further movement.”  The court, over Appellant’s objection, read the following response to the jury:

This is in response to your note, which I have designated jury note number three, in which you indicate that you’re at a real impasse.  If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury.  The indictment will still be pending, and it’s reasonable to assume that this case will be tried again before another jury at some future time.  Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear the same evidence which has been presented to this jury.  The questions to be determined by that jury will be the same questions confronting you, and there’s no reason to hope that the next jury will find these questions any easier to decide tha[n] you’ve found them.  With this additional instruction, you’re requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury if you can do so without violence to your conscience.  Don’t do violence to your conscience, but continue deliberating.

Ultimately, the jury found Appellant guilty as charged.  Following a trial on punishment, the jury assessed Appellant’s punishment at imprisonment for thirty-eight years.  The trial court sentenced Appellant accordingly, and this appeal followed.

Jury as a Representative Sample of the Community

            In his first issue, Appellant argues that the trial court violated his Sixth Amendment rights when it empaneled, over his objection, an all white jury in a case in which Appellant, who is African American, is accused of sexually assaulting Thompson, a white woman.

            As set forth in Duren v. Missouri, 439 U.S.357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979), in order to establish a prima facie violation of the requirement that there be a fair cross section of the community represented, the appellant must show (1) that the group alleged to be excluded is a “distinctive” group in the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.  See Pondexter v. State, 942 S.W.2d 577, 580 (Tex. Crim. App. 1996).

            In the case at hand, Appellant cites Pondexter, but declines to engage in any analysis of the case at hand under the framework set forth therein.  Rather, Appellant states that the court of criminal appeals’ threefold burden is “insurmountable.”  The remainder of authority cited by Appellant relates to Appellant’s contention that an all white jury cannot realistically be expected to satisfy a criminal defendant’s constitutional protections when that criminal defendant is African American.⁶

            In spite of Appellant’s assertion that his burden under Pondexter is insurmountable, we are nonetheless bound by such a standard as set forth by the court of criminal appeals.  Thus, by his failure to make a cogent argument with regard to the three elements set forth in Pondexter, Appellant has waived the issue.  See Tex. R. App. P. 38.1(h).  Appellant’s first issue is overruled.⁷

Allen Charge

            In his second issue, Appellant argues that the trial court’s Allen⁸ charge had a coercive effect on the jury in its conviction of Appellant.  The totality of Appellant’s argument supporting his second issue in his brief is as follows:

It is well established that the focus of any reviewing court is to scrutinize an Allen charge in light of all the circumstances.  Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996).  In this case, and for the reasons given by trial counsel,⁹ there is no question that the effect of the trial court’s Allen charge as set forth in the Statement of Facts had a coercive effect.  Before, the jurors  were at a six-to-six split.  After the instruction, the jury came back with a conviction.

            The primary inquiry to determine the propriety of an Allen or “dynamite” charge is its coercive effect on juror deliberation, “in its context and under all circumstances.”  Howard, 941 S.W.2d at 123.  A supplemental charge that suggests that all jurors reevaluate their opinions in the face of disparate viewpoints cannot be said to be coercive on its face.  See id.  Yet Appellant essentially argues that any Allen charge given, after which a jury convicts a defendant, necessarily has an unduly coercive effect given the unfavorable result to the defendant.  Appellant cites no authority supporting such a contention, and such a result is at odds with the authority Appellant has cited. See, e.g., Howard, 941 S.W.2d at 123–24.

            Here, the trial court did not shade its instruction with coercive nuance.  Its instruction did not identify any juror viewpoints.  Rather, the trial court instructed the jury to continue deliberations in an effort to arrive at a verdict that is acceptable to all its members, but only if such members could do so without violence to each member’s individual conscience.  Thus, we cannot conclude that there is any coercive suggestion in the trial court’s instruction.  Id.  Appellant’s second issue is overruled.

Factual Sufficiency

            When considering claims that the evidence is factually insufficient, we must first assume that the evidence is legally sufficient under the Jackson¹⁰ standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d).  Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).¹¹

            A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see  Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  A clearly wrong and manifestly unjust verdict occurs where the jury's finding “shocks the conscience” or “clearly demonstrates bias.”   Zuniga, 144 S.W.3d at 481.  As the court of criminal appeals explained in Zuniga, "There is only one question to be answered in a factual-sufficiency review:  Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?”  See id. at 484. 

            Here, the State had the burden to prove that Appellant, (1) with the intent to inflict bodily injury on Thompson or abuse her sexually, (2) intentionally or knowingly abducted Thompson (3) by restricting her movements without her consent so as to interfere substantially with her liberty, by moving her from one place to another or confining her with the intent to prevent her liberation, or by secreting or holding her in a place where she was not likely to be found.  See Tex. Pen. Code Ann. § 20.04(4) (Vernon 2003).  The brunt of Appellant’s argument focuses on inconsistencies in the testimony offered by Bankston and Thompson.¹²  Specifically, Appellant emphasizes that  Bankston testified that (1) she would always perform a sexual assault exam when a patient claimed to have been sexually assaulted and (2) the small tears in Thompson’s vagina could be considered consistent with consensual, yet vigorous, sexual intercourse.  Appellant further draws attention to various inconsistencies in Thompson’s testimony, querying as follows:

Was there a knife, keys, or nothing at all?  Did she walk to Karenda and Tamekia or did she ride?  Was she naked or [did she] have clothes on?  Why did she not mention rape to the officer present at Karenda and Tamekia’s house?  If [Appellant] raped her, why was she continuing to communicate with him in jail?

Appellant concludes, quoting Thompson, who stated, “I didn’t tell a lot that happened,” but contends that Thompson’s being “scared” or “nervous” cannot excuse the contradictions in her testimony and omissions in her initial statement to police.

            We have reviewed the record in its entirety.  We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt, 932 S.W.2d at 96.         We conclude that the jury was entitled to find credibility in the testimony offered by Bankston and Thompson.  Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  Appellant’s third issue is overruled.

Disposition

            Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s judgment.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

---

¹ Willis indicated in her testimony that Appellant told her to retrieve Thompson’s car keys from inside the house, which Willis did.

² Thompson later specifically states in her testimony that she did not go with Appellant voluntarily.

³ The record reflects that the trailer owned by Appellant was located next door to the residence occupied by his relatives.

⁴ Rhodes testified that the children would be outside playing during the hour that Appellant and Thompson were visiting.

⁵ The record reflects that Thompson was employed at Sonic at the time in question.

⁶ Appellant did not raise such an argument to the trial court.  See Tex. R. App. P. 33.1(a).

⁷ Having reviewed the record in the interest of justice, we have found neither evidence nor an instance where Appellant sought to introduce evidence that tends to support that (1) African Americans are a “distinctive” group in Rains County, Texas, (2) that the representation of venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the Rains County, Texas, or (3) that this underrepresentation is due to systematic exclusion of the African Americans in the jury selection process.  See Pondexter, 942 S.W.2d at 580.

⁸ See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

⁹ Appellant’s reference to the “reasons given by trial counsel” is not proper argument.  See Tex. R. App. P. 38.1(h).  Even if we were to consider an argument by proxy such as this on appeal, Appellant’s trial counsel’s objections do not meet the Rule 38.1(h) requirement that argument be supported by appropriate citations to

Footnote continued.

authorities.  Id.

¹⁰ See, e.g., Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).

¹¹ However, “contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide reasonable doubt.”  Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004).

¹² Appellant’s factual sufficiency argument centers upon the theory that Thompson consented to having intercourse with Appellant.  It does not address the potential bodily injury element alternatively charged in this matter.  See Tex. Pen. Code Ann. § 20.04(4).