CROSSOVER: Houston First COA: Unconscious Complainant + Defendant’s Conduct Supports Inferred Knowledge of Nonconsent (Useful Analog for Family-Violence Findings)

Thomas Joseph Radford, Jr. v. The State of Texas, 01-24-00715-CR, March 31, 2026.

On appeal from 300th District Court, Brazoria County, Texas

Synopsis

The Houston First Court of Appeals held the evidence legally sufficient to prove lack of consent and the defendant’s knowledge of nonconsent where the complainant was unconscious at the outset of intercourse due to Xanax intoxication. The court emphasized that unconsciousness can itself supply the “without consent” element under Penal Code § 22.011(b)(3) and (5), and that the defendant’s conduct—stopping and “acting like nothing happened” when she awoke—supported an inference he knew she was unconscious/unaware and thus not consenting.

Relevance to Family Law

Although this is a criminal sufficiency case, its reasoning is highly portable into Texas family-violence and SAPCR litigation where the court must make fact findings on coercion, impairment, and credibility. Family litigators routinely confront scenarios involving alcohol/benzodiazepines, “I don’t remember,” or “they didn’t say no,” and this opinion supplies a clean appellate framework: (1) unconsciousness/physical inability to resist can establish nonconsent; and (2) knowledge can be proven circumstantially through conduct and “consciousness of guilt.” That combination is useful when seeking protective orders, § 153.004 findings, supervised possession, or disproportional property division based on family violence—even when the harmed party’s memory is partial and the alleged actor insists there is “no direct evidence.”

Case Summary

Fact Summary

The complainant (“Roberta,” pseudonym) was suicidal and asked the appellant to meet her at a friend’s house with additional Xanax so she could kill herself. Roberta testified the appellant provided the Xanax upon her arrival. She took the pills, cried, and went unconscious.

When Roberta awoke, she testified her shorts were pulled down; she was partially hanging off the edge of a chair; and the appellant was holding her legs up and having sex with her. She waited briefly before opening her eyes. When she did, the appellant immediately stopped, pulled his pants up, and “acted like nothing happened.” Roberta called her boyfriend, who arrived and struck the appellant; Roberta then called police. A jury convicted the appellant of sexual assault and assessed 11 years’ confinement.

Issues Decided

• Whether the evidence was legally sufficient to prove the sexual assault was “without consent” when the complainant was unconscious at the outset of penetration due to intoxication.
• Whether the evidence was legally sufficient to prove the defendant knew the complainant was unconscious/physically unable to resist or unaware the assault was occurring (i.e., knowledge of nonconsent).

Rules Applied

The court applied the familiar legal-sufficiency standard: viewing the evidence in the light most favorable to the verdict, the reviewing court asks whether any rational factfinder could have found the essential elements beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It reiterated that the jury is the sole judge of credibility and weight. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Substantively, the court relied on:

• Texas Penal Code § 22.011(a)(1)(A): sexual assault occurs if the actor intentionally or knowingly causes penetration without the complainant’s consent.
• Texas Penal Code § 22.011(b)(3) and (5): the assault is “without consent” if the complainant has not consented and the actor knows the complainant is (a) unconscious or physically unable to resist, or (b) unaware the assault is occurring.
• Wilson v. State, 473 S.W.3d 889, 897 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d): evidence the complainant was unconscious due to voluntary intoxication can be sufficient to prove lack of consent.
• Gutierrez v. State, 668 S.W.3d 46, 52 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d): knowledge/nonconsent may be inferred from circumstances, including where sex begins while the complainant is asleep.
• Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.): consciousness-of-guilt evidence can be powerful proof of culpability.

Application

The appellant attempted to convert the complainant’s unconsciousness into an evidentiary gap: because she could not testify about the “start” of intercourse, he argued there was no proof of nonconsent. The First Court rejected that framing as inconsistent with both statutory design and precedent. If direct testimony about the initiation were required, assaults on unconscious victims would become practically unprosecutable—an outcome the Legislature foreclosed by defining “without consent” to include unconsciousness/unawareness where the actor knows that condition.

On knowledge, the court leaned into orthodox circumstantial-proof principles. It emphasized that state of mind is rarely proven by direct admission and may be inferred from conduct and surrounding circumstances. Two facts mattered strategically. First, the jury could infer the appellant knew Roberta was unconscious/unaware because intercourse began while she was unconscious “thanks to the drugs the appellant gave her.” Second, the appellant’s immediate cessation and “acting like nothing happened” upon Roberta opening her eyes supplied a consciousness-of-guilt inference—behavior consistent with an awareness that the act was nonconsensual and would not withstand scrutiny if she were fully aware.

The court therefore concluded a rational jury could find beyond a reasonable doubt both (1) lack of consent under § 22.011(b)(3) and/or (5), and (2) the actor’s knowledge of that lack of consent.

Holding

The First Court of Appeals held the evidence was legally sufficient to prove the sexual assault was without consent where the complainant testified she was unconscious when penetration began and did not consent, even though she could not describe the precise initiation of intercourse.

The court also held the evidence was legally sufficient to prove the defendant’s knowledge of nonconsent because the jury could infer knowledge from circumstances and conduct—especially that the intercourse began while the complainant was unconscious and that the defendant stopped and behaved as though nothing happened when she awoke—supporting consciousness of guilt and knowledge she was unconscious/unaware.

Practical Application

Texas family-law factfinders are not applying Penal Code § 22.011 in most SAPCR/protective-order settings, but the logic of proof transfers cleanly: impairment can establish incapacity, incapacity can support an inference of non-agreement, and the respondent’s post-event conduct can supply the “knowledge/intent” component even when the petitioner lacks full memory.

Use this opinion tactically in at least four recurring family-law battlegrounds:

1. Protective orders (Title 4 / Family Code Chapter 85)
   When the petitioner’s testimony is “I woke up to it” or “I was blacked out,” the defense often argues “no evidence of refusal” or “no evidence of nonconsent.” Radford is a disciplined rebuttal: incapacity at the outset is not evidentiary emptiness; it is affirmative proof of nonconsent when coupled with testimony of unconsciousness and non-agreement.
2. SAPCR best-interest findings and § 153.004 restrictions
   If the alleged actor exploited intoxication/unconsciousness, the court can view that as coercive, dangerous conduct bearing directly on best interest and endangerment. The “knowledge can be inferred” portion is valuable when the accused parent claims “I didn’t know” or “they were fine.”
3. Credibility wars where memory is incomplete
   Family judges see partial recall all the time. Radford models how a factfinder may rely on circumstantial anchors—condition upon waking, positioning, clothing, immediate reaction, and the actor’s conduct—to resolve disputed intent/knowledge without demanding impossible testimony about unconscious periods.
4. Property division and fault-based narratives
   While disproportional division requires careful pleading and proof, evidence of exploitative sexual conduct occurring during impairment can support fault and family-violence narratives—particularly if corroborated by aftermath behavior that reads as concealment or minimization (“acted like nothing happened”).

Checklists

Building an Incapacity/Unawareness Record (Petitioner)

• Plead the impairment theory with specificity (intoxication, prescription meds, involuntary ingestion, sleep state) and the timeline of ingestion to onset.
• Elicit testimony describing loss of consciousness/unawareness (time gaps, inability to respond, inability to resist, waking circumstances).
• Develop “waking condition” evidence: clothing position, physical positioning, pain/injury, disarray, bodily fluids, torn garments.
• Lock in a clear “I did not consent” statement, even if memory is incomplete for the onset.
• Corroborate with contemporaneous communications (texts/calls), 911 audio, ER/SANE records, photographs, and witness observations of impairment.
• Preserve admissions/minimization: “it was nothing,” “you wanted it,” “don’t make a big deal,” apologies, requests not to tell, or pressure to recant.

Proving Knowledge/Intent Through Conduct (Petitioner)

• Highlight conduct at the moment awareness returned: stopping abruptly, pulling clothing up, feigned normalcy, leaving quickly, threats, or cleanup efforts.
• Develop evidence the respondent knew the petitioner’s condition (provided substances, observed impairment, assisted walking, carried to bed, etc.).
• Offer “consciousness of guilt” facts: concealment, inconsistent stories, destruction of evidence, witness tampering, sudden relocation, or avoidance.
• Use impeachment exhibits to show shifting explanations, especially across hearings (protective order, temporary orders, deposition).

Defense Risk-Management for “They Were Unconscious” Allegations (Respondent)

• Treat the knowledge element as the center of gravity; do not rely on “no direct evidence of nonconsent” as a standalone theme.
• Develop affirmative evidence of awareness/consent before impairment (communications, witnesses, context), while anticipating that incapacity can still override.
• Address post-event behavior head-on; “acted like nothing happened” reads as consciousness of guilt unless explained with credible, consistent facts.
• Preserve evidentiary objections and due-process issues (hearsay layering, medical-record predicates, authentication, reliability challenges).
• Consider expert testimony carefully (toxicology, memory/blackout science) but avoid overreaching; experts that appear advocacy-driven can backfire.
• In SAPCR, focus on present-child-safety proposals (supervision, alcohol/med monitoring, treatment, agreed safeguards) to mitigate worst-case findings.

Trial-Court Findings and Appellate Proofing (Both Sides)

• Request specific findings where available (protective orders; SAPCR orders) that track incapacity/unawareness and circumstantial knowledge.
• Ensure the record contains the behavioral facts supporting inference (stopping, concealment, minimization), not merely conclusions.
• Tie the conduct to the legal standard the judge must apply (best interest/endangerment; family violence; credible threat), even if the proceeding is civil.
• Preserve sufficiency arguments with precise attacks on elements (timeline, awareness, corroboration), not generalized “he said/she said.”

Citation

Radford v. State, No. 01-24-00715-CR, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Mar. 31, 2026) (mem. op.) (not designated for publication).

Full Opinion

Read the full opinion here

Family Law Crossover

In a Texas divorce or custody case, Radford can be weaponized as an appellate-approved reasoning template for proving coercive sexual conduct (and the actor’s awareness of incapacity) without demanding the impossible—direct testimony about events occurring during unconsciousness. In practice, it supports aggressive framing that (1) incapacity is not “lack of proof,” it is proof of non-agreement when the impaired party testifies she was unconscious and did not consent, and (2) the respondent’s “normalizing” or abrupt-stop behavior is circumstantial evidence of knowledge and consciousness of guilt. That combination can drive temporary orders (exclusive use, no-contact, supervised visitation), influence § 153.004 best-interest and safety restrictions, and bolster credibility determinations when the opposing side’s core theme is “no one can prove what happened because she doesn’t remember the beginning.”

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