No. 10-03-00216-CR
Opinion delivered and filed June 13, 2007. DO NOT PUBLISH.
Appeal From the 54th District Court McLennan County, Texas Trial Court No. 2002-921-C.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
FELIPE REYNA, Justice.
A jury convicted Delair Watson of burglary of a habitation and assessed his punishment at thirteen years' imprisonment. Watson contends in two issues that the evidence is legally and factually insufficient to prove that he intended to commit the offense of sexual assault when he entered the habitation in question. We will affirm. On original submission, a majority of this Court held that the evidence is legally sufficient but factually insufficient. See Watson v. State, 160 S.W.3d 627 (Tex.App.-Waco 2005). The Court of Criminal Appeals reversed and remanded for further consideration after clarifying the appropriate standard for a factual sufficiency analysis and overruling some of its own prior precedent on this issue. See Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006).
Standard of Review
Under the clarified standard of review for a factual sufficiency claim, the reviewing court asks whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson, 204 S.W.3d at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We "review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the fact finder's weighing of the evidence and disagree with the fact finder's determination. Watson, 204 S.W.3d at 416-17. Before reversing on the basis of factual insufficiency, "an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417. Application
The sole issue is whether the evidence is factually insufficient to prove that Watson intended to commit sexual assault while in the complainant Jennifer Romo's apartment. The evidence which tends to support the jury's finding that Watson so intended includes: (1) he dropped his shorts to expose his erect penis, (2) he came toward Romo as she grabbed a butcher knife to defend herself, (3) he did not flee when Romo brandished the knife and told him to leave; and (4) he attempted to take the knife away from her. Watson argues that this evidence is factually insufficient because he did not say anything which would indicate what his intent was and because he never touched Romo. Cf. Walls v. State, 164 Tex. Crim. 470, 299 S.W.2d 953, 953 (1957); Baldwin v. State, 153 Tex. Crim. 19, 216 S.W.2d 985, 986 (1949). We observed on original submission that Watson's act of taking hold of the butcher knife could be interpreted as an effort to defend himself rather than an attempt to use force against Romo and overpower her. See Watson, 160 S.W.3d at 630. Thus, the evidence gives rise to conflicting inferences on the issue of Watson's intent. However, the mere fact that conflicting inferences may be drawn from the evidence does not necessarily lead to the conclusion that the evidence is factually insufficient, even if the evidence supporting a finding on the challenged element may not be characterized as overwhelming. After a neutral review of the evidence, we cannot say "with some objective basis in the record that the great weight and preponderance of the . . . evidence contradicts the jury's verdict." See Watson, 204 S.W.3d at 417. Therefore, we overrule the sole issue presented and affirm the judgment.