OK, the trophy returns to the Waco Court of Appeals. They have reversed a conviction for burglary with intent to commit sexual assault on factual insufficiency, leaving Justice Gray once again with a great dissent:

DISSENTING Opinion

Let me see if I've got this straight.

A man enters a house after he has been told to leave. When the woman in the house confronts him in her kitchen she screams, telling him to get out. Instead of leaving, he drops his pants revealing his erect penis. The woman, being in the kitchen, grabs a knife (good for her). Rather than flee, the intruder grabs the end of the knife. The woman twists it in the intruder's hand, he releases it, pulls up his pants and leaves.

And from these facts a person is not rationally justified in finding beyond a reasonable doubt that the intruder entered the home with the intent to sexually assault the woman? I guess my response to the majority opinion - "You have got to be kidding" - makes me irrational, along with 12 jurors and the trial court.

When I line up the same cases the majority does, I see the following:

1. Use of force against victim - grabbed the knife.

2. Failure to immediately retreat even after challenged - unlike Walls.

3. Exposed himself - unlike Baldwin or Hays.

I dissent.

TOM GRAY Chief Justice

Dissenting opinion delivered and filed February 23, 2005

Just to clarify....the case was indicted as a Burg. Hab. with ATTEMPT to commit sexual assault, not Burg. Hab. with INTENT to commit sexual assault. Not that I think it makes a difference, but the learned Court believes it does.

I had the pleasure of sitting next to Judge Gray at an appellate seminar in Austin several years ago, and he makes as much common sense and reason in his conversations of a personal nature as he does on the bench. He is truly a sensible and nice person, and I certainly enjoy reading his opinions, even if, like this one, they are a dissent.

He would be a good candidate for the CCA.

The difference is that those acts articulated in Justice Gray's dissent could have proven his intent, but they were insufficient as an act in furtherance of the commission of the crime as required to establish "attempt." Semantics, but a recognizable distinction. I knew there was a problem as soon as I began the appeal. I'm not surprised by the decision or horribly distressed by it. I'm much more concerned with the Court's decision in Cecil Hackett, stating that notice of intent to use priors for enhancement given less than 10 days out is always untimely regardless of the circumstances.

A man in her home without her permission advances towards her sans pants and with his male member out and erect and that's not an "attempt" ?

At what point would it become an attempt ?
When he got the knife ?
When he placed the knife to her(state relevant body part here)?
When he got her clothes off ?
Give me a break.

Maybe I'm just not seeing the big picture?!!

So because she managed to ward him off without having actually been able to carry out an overt act beyond the exposure and advancing on her with his tumescent member, it's not burglary?

I guess I don't understand the semantics of the situation.

Sometimes us country folk just don't get that big city way of thinking...but I'm pretty sure that even the sheep here in Gregg County would have known what that fella was up to !!

I would think that the act of dropping trou to reveal one's business is always a step in furtherance of a sexual assault.