The Texas Court of Criminal Appeals has agreed to review the state’s appeal of a lower court ruling that reversed the sexual assault conviction of former Baylor University football player Sam Ukwuachu.
Without comment, the state’s highest criminal court agreed to consider a petition for discretionary review filed by the McLennan County District Attorney’s Office to appeal a reversal of Ukwuachu’s conviction by Waco’s 10th Court of Appeals.
The 10th Court ruled in March that Ukwuachu deserves a new trial because a series of text messages between the victim and her friend sent shortly before the incident were improperly excluded from evidence at Ukwuachu’s trial.
The court admitted a portion of the messages but not the entire series of messages that Ukwuachu argued would have supported his defense of consensual sex and offered evidence about a prior relationship between him and the woman.
“We find that because consent was the central issue in the proceeding, we cannot say that we have a fair assurance that the erroneous exclusion of the text messages did not affect the outcome of this proceeding, especially when considered with the other alleged errors in the trial of this cause,” 10th Court Chief Justice Tom Gray wrote in the opinion.
The Court of Criminal Appeals has not set a date for oral arguments in the case.
The district attorney’s office is asking that Ukwuachu’s conviction be reinstated. The former defensive end from Pearland remains free on appeal bond.
Ukwuachu’s attorney, Bill Bratton, did not return phone messages Wednesday. He has said Ukwuachu is looking forward to clearing his name on retrial and that he is aware of the risk of going to trial again and facing a maximum penalty of 20 years if he is convicted.
After jurors granted Ukwuachu’s request for a probated sentence, 54th State District Judge Matt Johnson put Ukwuachu, who was named a freshman All-American at Boise State University before he transferred to Baylor, in jail for 180 days as a term and condition of his probation.
Ukwuachu said he had consensual sex with the now-former Baylor student. Revelations from his trial and the trial of former Baylor defensive end Tevin Elliott opened the floodgates to the sexual assault scandal at Baylor that led to the firings of football coach Art Briles and President Ken Starr. Elliott is serving a 20-year term on two 2014 sexual assault convictions.
The alleged victim in Ukwuachu’s case, who was a freshman athlete at Baylor, told jurors Ukwuachu raped her at The Groves apartment on South University Parks Drive after a Baylor homecoming party in November 2013.
She said she saw Ukwuachu at the party, and he asked her if she wanted to go eat later. He came to her apartment to pick her up, but instead of going to a restaurant or to another party, Ukwuachu drove to his apartment, the woman said.
She said she started to get a little worried, so she texted a friend that they were going to his apartment.
While watching TV in his room, the 5-foot-2 woman said the 6-foot-4 Ukwuachu started “making moves” and trying to pull off her dress. As he became more aggressive, Ukwuachu forcefully turned her over and stripped off the rest of her clothes before sexually assaulting her, she told the jury.
She testified that she was screaming and yelling “no” throughout the assault. At one point, she said, Ukwuachu told her, “This isn’t rape.” He also asked if she was going to call “the cops,” she said.
She ran to the bathroom. When she came out, Ukwuachu appeared to be asleep, so she left his apartment and called a friend to come pick her up, she said.
“All I wanted to do was go home and pretend it didn’t happen,” she said. “I wanted to act like it didn’t happen.”
But the next morning, with coaxing from her friends, she called police and went with her friends to the hospital for a sexual assault exam.
Baylor officials took no action against Ukwuachu and cleared him to play. Waco police did not arrest Ukwuachu but sent the case to the DA’s office. That led to Ukwuachu’s indictment.
In a victim-impact statement after Ukwuachu was sentenced, the woman told Ukwuachu he robbed her of her virginity and part of her identity. She said she thinks of herself at times now merely as the “girl who got raped.”
“At times, I want to cry a tsunami,” she said. “Not a river. Rivers are too calm and too peaceful.”