Thomas v. State

126 S.W.3d 138, 2003 Tex. App. LEXIS 4973, 2003 WL 21357314
Court of Appeals of Texas·Decided June 12, 2003·No. 01-02-00260-CR·Published·Cited by 42 cases

Opinions

OPINION

EVELYN V. KEYES, Justice.

Karene Morton Thomas, appellant, was charged with burglary of a habitation with intent to commit sexual assault, a first [141] degree felony1 punishable by imprisonment for life or for no more than 99 years and no less than five years and a fine of no more than $10,000.2 The jury found appellant guilty, and the trial court assessed punishment at 80 years’ confinement. We affirm.

Facts

The Charged Offense

Nelle Patton is a 71 year old woman who fives alone and enjoys playing tennis three to five times a week. She had been harassed by constant doorbell rings and knocks at her door with no one there when she answered. She had assumed that it was teenagers.

On December 4, 1999, an intruder rang Patton’s doorbell “insistently” until she left her bedroom to answer the door. As she was walking down the hallway near the living room in her home, she ran into appellant. Patton described appellant as being a black man with little or no hair and gold rimmed glasses.

Patton asked who appellant was, how he had gotten into the home, and what he wanted. Appellant replied that he wanted “a little p* * * Patton tried to distract appellant from achieving his ultimate goal by laughing at his comment, asking him questions, and trying to make small talk. Patton backed herself against the wall in the hallway in order to protect herself. She realized that appellant had one of her knives and was covering it with a white cloth. After she told him that the knife frightened her, he dropped it.

Appellant began to grope Patton, including her breasts. Appellant penetrated Patton’s vagina with his fingers and said he would not hurt her. She told him that he was hurting her and he eventually stopped. Appellant got down on his knees and was going to attempt oral sex, when Patton laughed and told him that her legs were too long for him to do that. Appellant than grabbed Patton’s hand and made her hold his penis.

Appellant began to realize that dawn was approaching. He walked into her bedroom and asked Patton if she wanted him to leave. She told him that she did. Appellant said that he would leave through the front door if she would go into her bedroom and lock the door. Patton, in fear of being raped and killed if she did that, refused and said that she would go into the bedroom if he would go into the living room. Appellant went to the living room and Patton ran to her bedroom and dead-bolted the door. She tried to call the police, but she could not because the telephone lines had been cut. She grabbed her gun from the dresser and tried to shoot it. The gun fired and went through her television, lodging the bullet in her dresser. She heard appellant move and thought that he had left, so she went to her bathroom and tried to climb out the window. She could not fit, and in attempting to get out, she laid the gun on the window sill and it fired again, hitting the neighbor’s garage. Patton then ran to another bedroom and escaped through a window. She yelled for her neighbor, who called 911.

Officer Edward Srebalus arrived at Patton’s home. He observed a broken window pane in the breakfast area near the back door. He attempted to recover fingerprints at the points of entry and exit, but was unsuccessful. A few weeks after the attack, Patton sat down with a sketch [142] artist and produced a sketch of the intruder that closely resembled appellant.

The Extraneous Offense at the Guilt/Innocence Phase

Georgia Garrett is a 70-year-old woman who lives alone in an apartment. In the beginning of 2000, Garrett saw the shadow of someone stooping outside her patio window. The person ran away, and she called the police. About one month later, Garrett saw a shadow again, and she again called the police. Garrett stated that both times the individual was appellant. Garrett asked the apartment complex to install a patio light, but someone kept jumping over the fence enclosing her patio and unscrewing the light bulb and also shining a flashlight into her bedroom window. On another occasion, someone left pornographic pictures titled “Promiscuous Granny” at Garrett’s apartment door.

On November 6, 2000, officers were called to Garrett’s apartment complex to investigate - an unrelated disturbance. They had been called to the complex numerous times because of reports of a “peeping tom.” While the officers were at the apartment complex, Garrett called the police because someone was in her patio. A dispatcher told the officers that a black man had been seen in one of the apartment’s patios. Officer Steven May approached Garrett’s apartment and saw a man standing near the window in the patio. The other officer went into Garrett’s apartment and walkéd through the sliding glass door onto the patio to handcuff appellant. Appellant had a flashlight and a tool that could be used to open a sliding glass door.

Appellant was arrested for this offense. While in custody he consented to being placed in a line-up. Patton was unable to make a positive identification.

The Confession

Appellant made an oral confession that was audio-taped on November 6, 2000, and was played to the jury over a renewed objection. Appellant does not contest the admissibility of the confession on appeal. In the confession, appellant admits to his interest in older women and to looking into other people’s homes because he was attracted to the light coming from the windows. He states that he was face-to-face with only one woman around a year before the confession, ie., around the time of the offense with which he was charged. Appellant admits that he entered the woman’s home through a door, either the garage or the kitchen door, which he claims was open, but that he was not let into the woman’s home by the woman; that he then rang her door bell; that when she answered the bell, he fondled her breasts and rubbed her legs near or in her living room where she was standing; and that her legs interested him the most. The woman told him what he was doing was wrong, told him that he looked like a nice person that would not do something like this, asked him why he was doing what he was doing, and said to him, “God bless [you].” He left after the woman asked him to leave; and the woman told him she would pray for him. Appellant identified the woman as someone who plays tennis and described her as Caucasian, in her fifties or sixties.

Appellant stated that the night he was in Garrett’s patio, he left his apartment around 1:30 a.m. Appellant also explained why he was in Garrett’s patio on November 6, 2000. He stated that he saw a couple of flower pots that interested him and wanted to get a closer look. He . explained that he could see the flower pots from the walkway. In order to get a better look at the flower pots, he “crossed over” the fence surrounding the patio. [143] Appellant had no intention of taking the flower pots, and he had no idea that anyone was in the apartment.

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Thomas v. State, 126 S.W.3d 138, 2003 Tex. App. LEXIS 4973, 2003 WL 21357314 (Tex. Ct. App. 2003).

126 S.W.3d 138 (Thomas v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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