Two months after Waco’s 10th Court of Appeals reversed the sexual assault conviction of former Baylor University football player Sam Ukwuachu for a second time, the Texas Court of Criminal Appeals again will review the lower court’s decision.
The state’s highest criminal court only grants petitions for discretionary review in a small percentage of cases. Rarer still is its decision to grant the review twice in a single case, officials said.
Waco’s 10th Court of Appeals reversed Sam Ukwuachu’s 2015 sexual assault conviction for a second time in July, ruling prosecutors used “false testimony” and violated the former Baylor University football player’s due process rights.
The McLennan County District Attorney’s Office strongly disagreed with the opinion and asked the higher court to review the 10th Court’s decision. The Court of Criminal Appeals said Wednesday that it would do so.
The Court of Criminal Appeals ruled in June 2018 that the Waco intermediate appellate court was wrong in its initial reversal of Ukwuachu’s conviction in an opinion written by 10th Court Chief Justice Tom Gray.
A 54th State District Court jury convicted Ukwuachu in 2015 and granted his request for probation in the sexual assault of a Baylor freshman athlete, who testified that Ukwuachu raped her at The Groves apartments on South University Parks Drive after a Baylor homecoming party in November 2013.
The Pearland standout, who remains free on appeal bond, transferred to Baylor from Boise State University but never played at Baylor. He said he had a consensual sexual encounter with the woman.
The case has ping ponged back and forth between the 10th Court and the Court of Criminal Appeals because the 10th Court has reversed the case twice on various claims of error, but left points of appeal unresolved on each occasion. The higher court reversed the opinion but sent the case back to the Waco court to decide the remaining issues.
McLennan County Executive Assistant District Attorney Tom Needham said Wednesday that the DA’s office is pleased the higher court has agreed for the second time to review the 10th Court ruling, which he said is “both legally and factually incorrect.”
“Our office continues to strongly disagree with the 10th Court of Appeals’ decision to reverse the Ukwuachu judgment and we adamantly dispute the inference by the 10th Court that there was any false impression left with the jury by our prosecutors’ actions,” Needham said.
“We think the evidence was correctly and properly used during trial and we hoped the Court of Criminal Appeals would grant review, and we remain confident that the 10th Court of Appeals will be reversed again by the higher court.”
Needham said if the Court of Criminal Appeals reverses the lower court again, “we anticipate the 10th Court of Appeals will attempt to reverse the judgment on other grounds.”
Should that occur, the DA’s office will ask the higher court to review the ruling for a third time, he said.
Ukwuachu’s attorney, William Bratton III, acknowledged the rarity of the Court of Criminal Appeals granting petitions of discretionary review twice in one case.
“I have only practiced law 43 years and it has never happened to me before,” Bratton said Wednesday. “We just have to deal with what procedures are put in front of us. I don’t really know what else to say.”
The 10th Court reversed the conviction the second time on the basis of its belief that the prosecution’s use of cellphone records from Ukwuachu’s roommate created false testimony and violated Ukwuachu’s due process rights.
“The false testimony relates to Ukwuachu’s roommate’s location and whether phone calls were made around the time of the alleged offense,” the opinion states. “The complaint is that the false testimony was created by the way in which the state made use of his roommate’s cell phone records, which were provided to Ukwuachu on the second day of the trial, but which were excluded from evidence.
“Regardless of whether done knowingly or unknowingly, the state’s use of material testimony that is false to obtain a conviction violates a defendant’s right to due process under the Fifth and Fourteenth Amendments.”
The court wrote that based on the time and location data shown by the phone records, the state argued that Ukwuachu’s roommate was across town during the alleged assault rather than in their apartment, as the roommate testified.
The alleged victim testified that she screamed during the assault and said the roommate could have heard her if he had been there as he said.
“But the times shown in the phone records were in UTC (Coordinated Universal Time), which was five hours different from local time,” the 10th Court opinion states. “Due to this five-hour difference in time for when the calls were made, Ukwuachu claimed that his roommate’s testimony was not shown to be untrue by the records as argued by the state. The trial court did not allow the admission of the phone records but allowed the state to ask questions about making phone calls.”
The court found that there is a “reasonable likelihood that the false impression affected the judgment of the jury.”
In its response, the DA’s office argued that any dispute about the time zones was resolved outside the presence of the jury and that no erroneous times were ever presented as evidence in front of the jury.