The state’s highest criminal court on Wednesday stood by its June ruling that Waco’s 10th Court of Appeals erred when it reversed the 2015 sexual assault conviction of former Baylor University football player Sam Ukwuachu.
Without opinion, the Texas Court of Criminal Appeals denied Ukwuachu’s motion asking the court to reconsider that ruling.
The denial sends Ukwuachu’s appeal back to the 10th Court of Appeals, the three-judge court in Waco, to rule on other appellate issues that court did not consider before reversing Ukwuachu’s conviction last year.
Ukwuachu’s attorney, William Bratton III, did not return a phone message Wednesday morning.
If the 10th Court denies Ukwuachu’s remaining points of appeal and affirms his conviction, the former Baylor defensive end will begin serving 10 years of felony probation, the sentence recommended by a 54th State District Court jury in August 2015. Ukwuachu is now free on bond.
The remaining points of appeal by Ukwuachu include claims that McLennan County prosecutors abused the grand jury process in the manner they summoned Ukwuachu’s roommate to testify and whether Judge Matt Johnson improperly allowed testimony about extraneous offenses into evidence.
Ukwuachu said he had consensual sex with a woman who was attending Baylor. 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 removals of football coach Art Briles and President Ken Starr. Elliott is serving a 20-year term on two 2014 sexual assault convictions.
The McLennan County District Attorney’s Office asked the Court of Criminal Appeals to review the 10th Court opinion last year.
In the 10th Court opinion, written by Chief Justice Tom Gray and issued in March 2017, the court ruled that Ukwuachu deserved 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, and that Johnson abused his discretion by doing so.
Johnson 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 would have offered evidence about his prior relationship with the woman.
The high court ruled that the 10th Court erred in holding that the text messages should have been admitted under certain rules of evidence, Rule 412 and Rule 107, even though Ukwuachu’s attorney, Jonathan Sibley, did not offer the evidence under Rule 412. Rule 412, otherwise known as the rape shield law, governs evidence of previous sexual conduct by sexual assault victims.
Johnson did not abuse his discretion “and the court of appeals erred in holding otherwise,” the Court of Criminal Appeals ruled.
The alleged victim in Ukwuachu’s case, who was a freshman athlete at Baylor, told jurors Ukwuachu raped her at The Groves apartments on South University Parks Drive after a Baylor homecoming party in November 2013.