Kristopher Brown-Maxwell v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00663-CR

Kristopher Brown-Maxwell, Appellant

v.

The State of Texas, Appellee

FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 21-0508-K277, THE HONORABLE STACEY MATHEWS, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found Kristopher Brown-Maxwell guilty of sexual assault of Jade Smith1

and assessed sentence at nine years in prison. Tex. Penal Code § 22.011(a)(1). The sentence

was suspended and Brown-Maxwell was placed on community supervision for nine years. He

contends that factually insufficient evidence supported a finding of penetration beyond a

reasonable doubt and that his counsel was ineffective for failing to request an instruction for

attempted sexual assault. We will affirm the judgment of conviction.

I. Sufficiency of the evidence

Brown-Maxwell contends that the evidence is insufficient to support the jury’s

finding beyond a reasonable doubt that he penetrated Jade and that there is no “objective proof”

of lack of consent beyond the testimony of the victim. Although Brown-Maxwell asserts that he

is challenging the factual sufficiency of the evidence to support the finding, that challenge is not

1 Jade is a pseudonym for the victim. available in criminal cases in Texas. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). The Court of Criminal Appeals held that the standards of review for legal-sufficiency and

factual-sufficiency challenges to criminal verdicts were indistinguishable, id. at 902, and that

legal sufficiency is the only standard by which a reviewing court should determine whether the

evidence is sufficient to support a conviction. Id. at 912.

We assess the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608

(Tex. Crim. App. 2018). A person commits 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). The State must prove every element of a crime

beyond a reasonable doubt. Cada v. State, 334 S.W.3d 766, 772-73 (Tex. Crim. App. 2011). In

a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Braughton,

569 S.W.3d at 607-08.

The trier of fact is the sole judge of the weight and credibility of the evidence

after drawing reasonable inferences from the evidence. Braughton, 569 S.W.3d at 608; see also

Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is the exclusive judge of the facts”).

When the record supports conflicting reasonable inferences, we presume that the factfinder

resolved any conflicting inferences in favor of the verdict, and we defer to that resolution.

Braughton, 569 S.W.3d at 608; Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018).

We determine whether the necessary inferences made by the trier of fact are reasonable based

upon the cumulative force of all the evidence. Id. Thus, when performing an

2 evidentiary-sufficiency review, we may not re-evaluate the weight and credibility of the evidence

and substitute our judgment for that of the factfinder. Arroyo v. State, 559 S.W.3d 484, 487

(Tex. Crim. App. 2018); see Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

Because factfinders are permitted to make reasonable inferences, “[i]t is not necessary that the

evidence directly proves the defendant’s guilt; circumstantial evidence is as probative as direct

evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient

to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).

Brown-Maxwell contends that the conflicts in the testimony combined with the

lack of “objective proof” of penetration and lack of consent mean that the record contains

insufficient evidence to support the conviction. However, a conviction under Section 22.011

may be supported “on the uncorroborated testimony of the victim of the sexual offense if the

victim informed any person, other than the defendant, of the alleged offense within one year after

the date on which the offense is alleged to have occurred.” Tex. Code Crim. Proc. art. 38.07(a).

Moreover, the conviction may be supported by the uncorroborated testimony of the victim if the

victim was seventeen years of age or younger at the time of the sexual assault. Id. art.

38.07(b)(1); State v. Dudley, 223 S.W.3d 717, 726 (Tex. App.—Tyler 2007, no pet.). Jade was

seventeen at the time of the offense and informed police officers and a nurse of the details of the

offense on the day it occurred. Jade’s testimony alone is sufficient if believed by the jury. 2

Jade undisputedly went to Brown-Maxwell’s apartment, spent the evening with

him and his friends, and stayed overnight with him in his room where they watched a cartoon.

Jade testified that Brown-Maxwell gradually escalated kissing and other physical contact, which

2 Jade and Brown-Maxwell testified at length regarding the events at issue. We have reviewed the record but, because of the sensitive nature of the events, recount only those aspects of the testimony necessary to our review of the legal issues presented in this appeal. 3 she resisted physically and verbally by telling him to stop. She testified that over several

minutes he removed her overshirt, pants, and underwear and “kept saying how relentless he was

and that he wasn’t going to stop” even though she started crying. Jade testified that, though she

told him she did not like what was happening, Brown-Maxwell then pulled his pants down and

inserted his penis into her vagina. While some details of Jade’s description of what occurred

varied between her statements to police, the sexual-assault nurse examiner, and the jury at trial,

she never wavered on her position that Brown-Maxwell penetrated her vagina with his penis

without her consent.

By contrast, Brown-Maxwell testified that their activities, including kissing and

other physical contact, were entirely consensual. He said that Jade removed her own clothes. He

testified that he did not at that time want to have sex with Jade and denied penetrating her vagina

with his “fingers, penis, or anything else.” Brown-Maxwell admitted he had been scared and

twice lied to police when he denied having any sexual contact with Jade—first when a detective

questioned him five days after the offense and weeks later when the detective questioned him

during the collection of a DNA sample.

The jury had to make a credibility choice and it chose to believe Jade and to

disbelieve Brown-Maxwell. The jury is the sole arbiter of the credibility of and weight to be

given testimony, Braughton, 569 S.W.3d at 608, and it rejected Brown-Maxwell’s version of

events. None of the other testimony and evidence undermines Jade’s testimony on the essential

facts of lack of consent and penetration of her sexual organ such that a rational jury could not

have found the essential elements of the offense beyond a reasonable doubt. Viewing the record

in the light most favorable to the verdict, we conclude that legally sufficient evidence supports

4 the jury’s findings underlying the verdict that Brown-Maxwell penetrated Jade’s sexual organ

without her consent. We overrule ground one.

II. Ineffective assistance of counsel in not requesting an instruction on attempt

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence (1) deficient performance by counsel and (2) resulting prejudice

to the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State,

548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that

counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 687-88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex.

Crim. App. 2017). The appellant must then show the existence of a reasonable probability—one

sufficient to undermine confidence in the outcome—that the result of the proceeding would have

been different absent counsel’s deficient performance. Strickland, 466 U.S. at 694; Burch

v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Our review of counsel’s representation is

highly deferential; we must “indulge in a strong presumption that counsel’s conduct was not

deficient.” Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013) (emphasis in

original); see also Strickland, 466 U.S. at 689. To rebut that presumption, a claim of ineffective

assistance must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012). If trial counsel has not been afforded the opportunity to explain the reasons

for his or her conduct, we will not find a deficient performance unless the challenged conduct

was “so outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d at

308 (quoting Menefield, 363 S.W.3d at 593).

5 Further, determining whether a defendant is entitled to a lesser-included-offense

instruction is a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011).

We first consider whether the offense contained in the requested instruction is a lesser-included

offense of the charged offense. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). The

State concedes here that an attempted offense is a lesser-included offense of the offense itself.

See Tex. Code Crim. Proc. art. 37.09(4). Next, we must determine whether there is some

evidence in the record that would permit a jury to rationally find that, if the defendant is guilty,

he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at 145. There must be some

evidence directly germane to the lesser-included offense for the finder of fact to consider before

an instruction on a lesser-included offense is warranted. Goad, 354 S.W.3d at 446. Anything

more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id.

“Criminal attempt” is defined as follows: “A person commits an offense 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.” Tex. Penal Code § 15.01(a).

The record is silent as to why Brown-Maxwell’s trial counsel did not request an

instruction on attempt and does not demonstrate that his choice not to request the instruction was

so outrageous that no competent attorney would have done the same. Brown-Maxwell testified

unequivocally that he did not penetrate Jade’s vagina and that he had not wanted to do so. He

did not describe any attempt by him to penetrate her vagina. However, Jade testified

unequivocally that he did penetrate her vagina with his penis without her consent. We find no

testimony or evidence that Brown-Maxwell intended and tried, but failed, to penetrate Jade’s

sexual organ. Because no evidence supported giving the attempt instruction, trial counsel’s

6 performance was not deficient for failing to request the unmerited instruction. We overrule

ground two.

CONCLUSION

Having overruled both grounds for appeal, we affirm the judgment of conviction.

__________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Affirmed

Filed: August 16, 2023

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