LUFKIN, TX (KTRE) - Warning: This story has some graphic sexual content.
After more than nine hours of deliberation Wednesday, a jury of 12, four women and eight men found Garland Johnson guilty of charge one: burglary of a habitation with the intent to commit sexual assault.
Then the jury found him not guilty of count two and three of sexual assault but found him guilty of the lesser charge of attempted sexual assault.
Judge Paul White deferred announcing the convictions and punishment until a pre-sentencing investigation could be done.
Day three of a Lufkin man's sexual assault trial started with a twist. Rudy Velasquez, the defense attorney for Garland Johnson, 39, of Lufkin immediately rested their case upon the opening of court Wednesday morning.
Shortly after the defense closed, the jury was asked to leave the courtroom while the formal charges with the judge's written instructions was prepared so they could deliberate and render a verdict in this case.
The state rested their case late Tuesday afternoon after spending the day calling DNA and forensic experts to the stand to explain their scientific findings.
The trial was scheduled to last until Thursday at the earliest but as Judge Paul White said, these things are not scripted, and anything can happen.
Johnson is charged with sexual assault after he reportedly kicked in his 19-year-old neighbor's apartment door on Raguet Street in May 2013, then bit the alleged victim all over her body in an attempt to sexually assault her. However, both sides made it clear from the beginning that there was never any intercourse just the touching of genitals.
Johnson pleaded not guilty to felony charges of burglary of a habitation with the intent to commit sexual assault and two counts of sexual assault.
Before the jury left to start its deliberations, District Attorney Art Bauereiss delivered his closing arguments.
Bauereiss asked the jury to consider whether consent is when a woman is in her apartment at 5 or 6 in the morning and her door is kicked in and he's on top of her.
Although the alleged victim was adamant that there was no penetration in the case, she did say that his mouth touched her sexual organ, Bauereiss said. The DA told the jury that voluntary intoxication is not a defense.
Bauereiss continued by saying Johnson either broke because he wanted to assault the alleged victim sexually as to count one, or the door was broken up some other way.
"He's either the guy that broke in or he's not," Bauereiss said.
Defense attorney Rudy Velasquez told the jury he's noticed that over the two days of testimony that many in the jury were bored.
Velasquez reminded the jury to remember about the alleged money that was missing.
Velasquez said this is the first case he's worked in more than 30 years of experience where he's had a case where a man was found on the floor naked, masturbating on the floor. That kind of thing doesn't happen every day, and that sent up some red flags somehow, the defense attorney said. Velasquez said he asked the police officers to show him the proof that Johnson broke through the door. He said the police testimony didn't prove how the door was broken and asserted that maybe Johnson was trying to get out.
Velasquez pointed out that the alleged victim changed her story when she testified on the stand to say that she didn't know Johnson, but in the patrol video she said that they were acquaintances.
Velasquez said he is still frightened to this day when he looks at the patrol car video where the victim is smiling and saying he was smoking bath salts.
The defense attorney said there was no DNA evidence to show there was any sexual contact on the victim's sexual organs. Velasquez also reminded the jury that Johnson consented and wanted to take any kind of drug test but was never given one.
Bauereiss said most of what he's heard from the defense defies common sense. Then he revisited the evidence presented by started with the witness that heard the cries for help, saw a man's rear end, and then ran to call the police.
Bauereiss said although the defense is pretty proud of the end of the patrol car video, he is pretty proud of the beginning where you can hear an upset female voice.
The Angelina County District Attorney said that in Johnson's interview, he told police he never touched her, but he also said they were both naked in the bed.
Bauereiss said that the defense made a big point about how there was no DNA found from the vaginal swab but reminded the jury Johnson's DNA was found in the bite marks on the alleged victim's body as documented by the SANE nurse.