Opinion filed September 2, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00043-CR & 11-09-00044-CR

__________

ERVIN DUANE WILLCOXSON, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause Nos. 10118 & 10119

M E M O R A N D U M O P I N I O N

In Cause No. 11-09-00043-CR, the jury convicted Ervin Duane Willcoxson of attempted 

aggravated sexual assault. The jury assessed punishment, enhanced by a prior felony conviction, 

at twenty-five years confinement. In Cause No. 11-09-00044-CR, the jury convicted appellant of 

injury to an elderly individual. The jury assessed punishment, enhanced by a prior felony 

conviction, at confinement for five years. The trial court sentenced appellant accordingly and 
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ordered that the sentences run concurrently. In two appellate issues, appellant challenges the 

factual sufficiency of the evidence to support his convictions. We affirm.

The Charged Offenses

A person commits the offense of attempted aggravated sexual assault if, with specific 

intent to commit aggravated sexual assault, he does an act amounting to more than mere 

preparation that tends but fails to effect the commission of the aggravated sexual assault. See

TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2003), § 22.021 (Vernon Supp. 2009). In Cause 

No. 11-09-00043-CR, the indictment alleged that, on or about July 14, 2007, appellant

committed the offense of attempted aggravated sexual assault as follows:

[Appellant] did then and there with specific intent to commit the offense of 

Aggravated Sexual Assault of Nancy Stverak, do an act, to-wit: pushing her onto 

a bed, holding her down, pulling her pants down to her knees, threatening to shoot 

her with a gun and trying to have sexual intercourse with her by force, which 

amounted to more than mere preparation that tended but failed to effect the 

commission of the offense intended.

See Section 22.021(a)(1)(A)(i), (a)(2)(A)(ii)-(iii), and (a)(2)(C). In Cause No. 11-09-00044-CR, 

the indictment alleged that, on or about July 14, 2007, appellant committed the offense of injury 

to an elderly individual as follows:

[Appellant] did then and there intentionally or knowingly cause bodily injury to 

Nancy Stverak, an individual 65 years of age or older, by shoving her or pushing 

her or holding her down on a bed.

See TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (Vernon Supp. 2009).

Issues on Appeal

Appellant presents two issues for review. In his first issue, he contends that the evidence 

was factually insufficient to support his conviction for attempted aggravated sexual assault. In 

his second issue, he contends that the evidence was factually insufficient to support his 

conviction for injury to an elderly individual.

Standard of Review

To determine if the evidence is factually sufficient, an appellate court reviews all of the 

evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006)

(overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 

23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. 

App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing 
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court determines whether the evidence supporting the verdict is so weak that the verdict is 

clearly wrong and manifestly unjust or whether the verdict is against the great weight and 

preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d 

at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the 

witnesses’ testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 

(Vernon 1979).

Evidence at Trial

The State called five witnesses: (1) Nancy Stverak; (2) Kristina Nylander; (3) Jones 

County Deputy Sheriff James Torres; (4) Department of Public Safety Trooper Vernon Davis; 

and (5) Constance Patton, a senior forensic biologist and DNA technical leader for the Tarrant 

County Medical Examiners’ Office Crime Laboratory. Appellant called four witnesses: 

(1) Timothy Brian Stverak; (2) Terry Pelton; (3) Donnelle Pelton; and (4) Karla Willcoxson.

State’s Witnesses.

Nancy Stverak testified that she was seventy-four years old on July 14, 2007, which was 

the date of the offense alleged in the indictments. Appellant was married to Nancy’s daughter, 

Karla. Nancy lived with Karla, appellant, and their daughter, Kayla, at their home in Hawley, 

Texas. Kristina Nylander lived in a home nearby.

Nancy testified that, on July 14, 2007, at about 2:30 p.m., Karla left home and went to 

work at a cafe. Nancy said that, at about 7:00 or 7:30 p.m., she drove Kayla to the cafe so that 

Kayla could help Karla. Nancy said that she returned home and watched television with 

appellant in the living room for a brief period of time. She said that she sat on the couch and that 

appellant, who was wearing only boxer shorts, sat in a chair. Nancy testified that she was 

wearing a V-neck pullover shirt and capri pants. She said that the shirt belonged to her. She said 

that, at about 8:00 or 8:30 p.m., she went to her bedroom to change into her nightclothes.

Nancy testified that, when she started to shut the bedroom door behind her, “[appellant] 

was right there” and would not let her close the door. Nancy said that appellant told her, “I’m 

going to f--k you, Nanan.” She said that Kayla called her “Nanan.” Nancy testified that 

“[appellant] grabbed [her] and he would push [her] and jerk [her] around and he pushed [her]

down on the bed.” Nancy described the attack as “violent.” She said that, at one time, “[her]

head and almost [her] whole torso [were] hanging backwards off the bed almost to the floor.”

She testified that appellant had one arm around her legs and that he tried to pull her pants down 
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with his other arm. She said that “he just tussled me around all over the room.” Nancy said that 

she fought appellant, kicked him, and tried to bite him and scratch him. She said that appellant 

was “jerking [her] and throwing [her] around.” She testified that her glasses were knocked off 

during the struggle.

Nancy testified that she was terrified. She said that appellant told her that he was “going 

to get a gun to kill [her] and then he was going to kill himself.” Nancy said that appellant 

managed to pull her capri pants and panties down to her mid-thigh. She said that she bit 

appellant and that he told her not to bite him. Nancy testified that, at some point, appellant 

ejaculated on her side, her shirt, and her bedspread. She said that she could see appellant’s penis 

sticking through the front of his shorts. Nancy testified that she “managed to get [her] leg loose” 

and that she kicked him and got away. She testified that she grabbed her nightclothes and ran 

out of the bedroom. She said that she ran into the bathroom, locked the door, took a shower, and 

then put on her nightclothes. Nancy said that, after taking the shower, she did not see appellant 

in the house. She said that she returned to her bedroom and put the capri pants and pullover shirt 

on the hamper. She testified that she put on a flannel shirt over her nightclothes and left the 

house.

Nancy testified that she intended to go see Kristina at her house but that Kristina was not 

home. Nancy said that she drove to a convenience store and that she saw Kristina there. Kristina 

testified that, at that time, Nancy was “physically shaking.” Kristina said that Nancy told her 

that appellant had tried to rape her and that appellant had said that he was going to take a gun and 

shoot her and himself. Nancy and Kristina went to Kristina’s house. Kristina called Karla and 

asked her to come over. Nancy testified that Karla came to Kristina’s house. Nancy said that 

she told Karla what appellant had done to her and that Karla was in “[s]hock, almost hysterical, 

crying, upset, [and] frightened.” Nancy testified that, at that time, she was experiencing hip pain 

and that the pain was worse the next day.

Kristina testified that she called the sheriff’s department. Jones County Deputy Sheriff

James Torres responded to the call. Nancy told Deputy Torres what had happened to her. 

Deputy Torres testified that Nancy told him that appellant had threatened to shoot her and kill 

himself. Deputy Torres testified that he did not see any scratches, bruises, or marks on Nancy. 

Deputy Torres said that Karla believed that a shotgun and possibly a rifle were in the Willcoxson 

residence. Department of Public Safety Trooper Vernon Davis arrived at the scene to assist 
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Deputy Torres. The officers went to the Willcoxson residence to talk to appellant. They 

knocked on the door, but appellant did not answer. Deputy Torres returned to Kristina’s 

residence and obtained consent from Karla to enter the Willcoxson residence.

Deputy Torres and Trooper Davis entered appellant’s residence. They found appellant in 

bed with his eyes closed. Deputy Torres testified that appellant “appeared to be pretending to be 

asleep.” Deputy Torres said that he and Trooper Davis “hollered at [appellant]” and that he 

asked appellant to get up but that appellant would not do so. Deputy Torres said that appellant 

finally “woke up” when they went over and shook him.

Trooper Davis testified that appellant was wearing boxer shorts. The officers took 

appellant outside to the front porch of the house, advised him of his rights, and then questioned 

him. Appellant told Deputy Torres something to the effect that “things just got out of hand.”

Appellant also said that he did not remember what had happened that evening because he had 

been drinking and was intoxicated. Deputy Torres testified that he did not smell any alcohol on 

appellant and that he did not believe appellant was intoxicated. Trooper Davis testified that he 

did not smell any alcohol on appellant. Trooper Davis said that he administered an HGN test on 

appellant, that the test did not reveal any intoxication clues, and that he did not believe appellant 

was intoxicated. Trooper Davis testified that he saw fresh wounds on appellant’s left jaw line 

and on the top of appellant’s forehead at the hairline. He said that appellant had what appeared 

to be dried blood on his neck. Deputy Torres testified that he observed some scratches on 

appellant’s forehead, underneath his chin, and on his left jaw. Deputy Torres said that he did not 

notice any bite marks on appellant. Appellant was arrested and taken to jail. The officers’ 

questioning of appellant on the porch was videotaped by a camera in Deputy Torres’s vehicle, 

and the videotape was played for the jury. The videotape demonstrates that appellant told the 

officers, “Things got out of hand.”

Nancy told Deputy Torres that the shirt she was wearing during the attack and her 

bedspread might have semen on them. Deputy Torres testified that Nancy showed him the 

bedroom where the attack had occurred. Deputy Torres said that Nancy’s bedroom was not in 

disarray except for the bedspread being “just a little bit” in disarray. Deputy Torres testified that 

he took the bedspread from the bed and that Nancy retrieved the shirt from the hamper and gave 

it to him. Deputy Torres said that he placed the shirt and bedspread into bags. The shirt and 
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bedspread were sent to the Tarrant County Medical Examiners’ Office Crime Laboratory for 

testing.

Nancy testified that her hip and back were hurting the next day. Kristina testified that 

Nancy “was having marked difficulty walking” and that Nancy complained all day that “she was 

hurting more and more.” Kristina drove her to the emergency room at Hendrick Medical Center

where she was examined. Nancy testified that she had bruises and contusions. She said that she 

was concerned that a prosthesis she had received in hip replacement surgery had been damaged 

during the attack. Nancy’s medical records indicated that she had a left hip contusion. Nancy 

testified that her pain persisted for one and one-half to two weeks.

Kristina testified that Nancy told her that she had bitten appellant on the face, mouth, and 

tongue and that she had scratched him on the neck. Kristina said that she saw appellant a day or 

two after the alleged attack. Kristina testified that she asked appellant to take off his shirt so that 

she could see whether he had any scratches on his body and that, when appellant did so, she did 

not see any scratches.

Constance Patton testified about DNA testing that was performed at the Tarrant County 

Medical Examiners’ Office Crime Laboratory. The laboratory had received a shirt and a 

bedspread, as well as buccal swabs that had been taken from appellant. Testing of the shirt 

revealed the presence of phosphatase and spermatozoa, which confirmed the presence of semen.

Because testing of the shirt showed the presence of semen, the bedspread was not tested. Patton 

testified that she performed a DNA analysis on the semen stain taken from the shirt and on the 

buccal swabs taken from appellant. Based on her analyses, Patton concluded that the DNA 

profile from the sperm specimen on the shirt matched appellant’s DNA profile. Patton testified 

that the probability of selecting an unrelated individual having the same genetic profile as 

appellant was about 1 in 4.8 quadrillion Caucasians. Patton said that “[i]t is my opinion to a 

reasonable degree of scientific certainty that the DNA contributor to the semen stain was 

[appellant].”

Appellant’s Witnesses.

Timothy Brian Stverak is Nancy’s son. He testified that, on or about July 14, 2007, he 

became aware of Nancy’s accusation against appellant. Timothy testified that Nancy told him 

that she had scratched appellant on his chest and arms and that she had bitten him on the lip. 

Timothy testified that he and Kristina saw appellant a day or two later. Timothy said that he and 
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Kristina asked appellant to raise up his shirt so that they could look at him and that, when 

appellant did so, he did not see any scratch marks on appellant other than a cut on his forehead

that had been caused when appellant had been hurt by a horse. Timothy said that he did not see 

any bite marks on appellant’s lip or cheek.

Terry Pelton testified that, on July 14, 2007, appellant helped him move a horse to his 

land. Terry said that the horse reared up, hit appellant in the head, and knocked him to the 

ground. Terry said that appellant had a cut on his forehead and that appellant’s head was 

bleeding after the incident. Terry’s wife, Donnelle Pelton, provided similar testimony about the 

incident involving the horse.

Karla testified that she and appellant had been married for more than fifteen years. She 

said that, on July 14, 2007, she worked at the cafe. She said that she got home from work 

between 9:00 and 10:00 p.m. Karla said that appellant was home when she got there. She said 

that appellant sat down at the table with her while she ate dinner. Karla said that appellant was 

wearing shorts and that he was not wearing a shirt. She testified that appellant showed her a cut 

on his head that he had received in the horse incident. She said that she did not notice any 

scratches or cuts on appellant’s face or jaw, bite marks on his face or lip, or any scratches on his 

body. She said that appellant had been drinking and that she smelled alcohol on him.

Karla testified that she received a telephone call from Kristina. Karla said that Kristina 

asked her to bring coffee to her house. Karla and her daughter, Kayla, then went to Kristina’s 

house. Karla said that Nancy was present at the house and that Nancy was crying. Nancy told 

Karla that appellant had tried to sexually assault her. Karla testified that she did not see any 

scratches, bruises, or marks of any kind on Nancy.

Karla testified about the shirt that Nancy had given to Deputy Torres. Karla said that the 

shirt belonged to her and that Nancy had given it to her as a hand-me-down. She said that, on 

July 14, 2007, the shirt was in her bedroom and that she had slept in it the night before. When

asked how appellant’s semen could have gotten on the shirt, Karla testified that she and appellant 

could have cleaned themselves with it after having sex. Karla believed that Nancy somehow 

knew that appellant’s sperm was on the shirt and “set him up.”

Analysis

In his first issue, appellant challenges the factual sufficiency of the evidence to support 

his conviction for attempted aggravated sexual assault. In essence, appellant asserts that the 
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evidence is factually insufficient to support his conviction because Nancy’s claim that he 

violently attacked her was not corroborated by any physical evidence. In the absence of such 

corroborating evidence, appellant contends that a jury could not have rationally concluded that 

the attack occurred. Appellant relies on the testimony of witnesses that they did not see any 

scratches or marks on Nancy or him. He also relies on Deputy Torres’s testimony that the 

bedroom was not in disarray. Appellant states in his brief that “[s]imply stated, it stands to 

reason, in this case, in light of this complainant’s specific testimony, the lack of any 

corroborating evidence renders the jury’s verdict irrational.”

The uncorroborated testimony of a sexual assault victim alone is sufficient to support a 

conviction for the sexual assault offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (Vernon 

2005). Nancy’s testimony is set forth in detail above. That testimony, if believed by the jury, 

was sufficient to support appellant’s conviction for attempted aggravated sexual assault. Id. As 

the sole judge of the credibility of the witnesses and the weight to be given their testimony, the 

jury was free to believe Nancy’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. 

App. 1986); Hawkins v. State, 283 S.W.3d 429, 434 (Tex. App.—Eastland 2009, pet. ref’d).

In addition, the State presented evidence that corroborated Nancy’s testimony that 

appellant attempted to sexually assault her. First, the DNA evidence corroborated Nancy’s

testimony that appellant ejaculated on her shirt. Karla had a different explanation as to how 

appellant’s semen could have gotten on the shirt. However, the jury was free to believe Nancy’s 

testimony and to disbelieve Karla’s testimony. Sharp, 707 S.W.2d at 614. Second, Deputy 

Torres testified that he saw a scratch on appellant’s left jaw. Third, appellant’s statement to the 

officers that “things just got out of hand” corroborated Nancy’s testimony.

We find that the evidence was factually sufficient to support appellant’s conviction for 

attempted aggravated sexual assault. The evidence supporting the verdict was not so weak that 

the verdict was clearly wrong and manifestly unjust, nor was the verdict against the great weight 

and preponderance of the conflicting evidence. Appellant’s first issue is overruled. 

In his second issue, appellant challenges the factual sufficiency of the evidence to support 

his conviction for injury to an elderly individual. Appellant again relies on a lack of 

corroborating physical evidence to support Nancy’s claim that a violent attack occurred. 

Appellant asserts in his brief that “where, as in this case, there is a complete dearth of 

corroborating physical evidence of bodily injury after an attack graphically described by the 
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victim as horribly violent, it stands to reason that a jury could not have rationally concluded that 

such an attack occurred.” Based on this assertion, appellant contends that the evidence of bodily 

injury was so weak that the jury’s verdict was clearly wrong and manifestly unjust and that the 

jury’s verdict was against the great weight and preponderance of the conflicting evidence.

“Bodily injury” is defined as physical pain, illness, or any impairment of physical 

condition. TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2009). Bodily injury may be 

proven by the victim’s testimony that she suffered physical pain. Lane v. State, 763 S.W.2d 785, 

786-87 (Tex. Crim. App. 1989); Allen v. State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976); 

Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975). Nancy testified that she 

experienced hip pain on the night of the attack and that her pain was worse the following day.

She said that she went to the emergency room the day after the attack and that, at that time, she 

had hip and back pain. She said that she had bruises and contusions from the attack. Nancy 

testified that her pain persisted for one and one-half to two weeks. Other evidence was 

consistent with Nancy’s testimony that she experienced physical pain after the attack. Kristina 

testified that Nancy had marked difficulty walking. The medical records showed that Nancy had 

a left hip contusion. The evidence was factually sufficient to establish that Nancy suffered 

physical pain and that, therefore, appellant caused bodily injury to her. Lane, 763 S.W.2d at 

786-87.

We find that the evidence was factually sufficient to support appellant’s conviction for 

injury to an elderly individual. The evidence supporting the verdict was not so weak that the 

verdict was clearly wrong and manifestly unjust, nor was the verdict against the great weight and 

preponderance of the conflicting evidence. Appellant’s second issue is overruled.

This Court’s Ruling

The judgments of the trial court are affirmed.

TERRY McCALL

 JUSTICE

September 2, 2010

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.