The state’s highest criminal court on Wednesday upheld the sexual assault conviction of former Baylor football player Sam Ukwuachu, reversing the decision of a lower court that had ordered a new trial because jurors were not shown text messages between the accuser and a friend.
The Waco-based 10th Court of Appeals had tossed out the conviction in March 2017, ruling that the trial judge improperly excluded several texts that the accuser, a fellow student-athlete identified in court documents as “CW,” had sent to a friend on the night of the charged offense in October 2013.
Defense lawyers wanted jurors to read texts sent prior to a message in which CW said Ukwuachu “just raped me basically,” arguing that the earlier texts indicated that she had previously consented to sex with him. Jurors, however, were shown only texts sent after the incident.
On Wednesday, a unanimous Texas Court of Criminal Appeals decision said the trial judge properly excluded the prior text messages, reinstating the sentence of 180 days in jail and 10 years of probation given to Ukwuachu, a one-time All-American who had transferred from Boise State but did not play for Baylor before he was suspended in 2014.
Ukwuachu’s sexual assault case and the 2014 sexual assault conviction of another former player, Tevin Elliott, helped ignite a scandal at the Baptist school, prompting a string of lawsuits and eventually leading to the firing of football coach Art Briles and Ken Starr’s removal as president.
Wednesday’s ruling — an opinion joined by four judges and two concurring opinions joined by the court’s five other judges — returns Ukwuachu’s case to the Waco appeals court to consider other objections raised by the former player but not yet ruled upon.
First, however, the lawyer for Ukwuachu said he will ask the Court of Criminal Appeals judges to reconsider their decision, saying it was limited to a single point — whether the trial judge acted properly in excluding several text messages — when the lower court issued a much wider-ranging ruling.
“We’re disappointed in the manner they went about dealing with issues as presented to them by the (Waco) court of appeals, whose opinion was very much more expansive,” lawyer William Bratton III said.
In a concurring opinion, Judge Kevin Yeary said the texts prior to the alleged attack were properly withheld from jurors under the state’s “rape shield” law, which generally bars evidence of a victim’s past sexual behavior in sexual assault trials.
The withheld messages were ambiguous, particularly a text advising CW to “wrap it up this time,” which could have referred to CW’s past encounters with Ukwuachu but also could have referred to relations with another man or even had a nonsexual meaning, Yeary wrote.
In a separate concurring opinion, Judge David Newell said he believed that defense lawyers should have been allowed to admit the entire string of text messages.
Even so, Newell said, there was no harm done and therefore no need to toss out Ukwuachu’s conviction because the texts would have been of limited help to his defense, providing only “weak” support for his argument that sex with CW was consensual.
“The exhibit also carried the potential to reinforce the victim’s testimony that she had never had sex with (Ukwuachu) before and did not want to have sex with him on the day of the offense,” Newell wrote.