Appeals court affirms sexual assault conviction of former Baylor University football player

FILE PHOTO: Sam Ukwuachu (left) and his attorney, William Bratton III of Dallas, after a...
FILE PHOTO: Sam Ukwuachu (left) and his attorney, William Bratton III of Dallas, after a hearing in May 2020.(John Carroll | KWTX)
Published: Sep. 29, 2022 at 12:38 PM CDT
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WACO, Texas (KWTX) - Sam Ukwuachu’s circuitous, seven-year path through the criminal justice system took another turn Thursday after Waco’s 10th Court of Appeals affirmed the former Baylor University football player’s conviction for sexually assaulting a former student.

Ukwuachu, now 29, a former Baylor defensive end from Pearland, was convicted in August 2015 of sexually assaulting a female soccer player. The jury recommended that he be placed on probation and former 54th State District Judge Matt Johnson ordered Ukwuachu to serve 180 days in the county jail as a condition of his 10-year probation.

Ukwuachu served two months and two weeks of that term before he was released on an appeal bond. His case and those of other football players and Baylor students accused of sexual assault focused national scrutiny on sexual violence issues at Baylor and led to the ouster of football coach Art Briles and university president Ken Starr.

Since then, Ukwuachu’s case has ricocheted between the 10th Court of Appeals in Waco and the Texas Court of Criminal Appeals, with the higher court twice reversing the Waco court’s opinions and sending the case back to resolve other appellate issues not yet considered.

The last unresolved issues included Ukwuachu’s claim that the trial court improperly admitted an extraneous offense involving his violent relationship with a former girlfriend in Boise, Idaho, and his complaint that prosecutors abused the grand jury process to intimidate his roommate, Penny Tagive, a defense witness.

In a10-page opinion written by 10th Court Chief Justice Tom Gray, the three-judge panel that included Justice Steve Smith and retired Justice Rex Davis overruled those issues and affirmed Ukwuachu’s conviction.

Johnson, who has since been elected to the 10th Court of Appeals, did not participate in deciding Ukwuachu’s appeal.

An angry Ukwuachu said Thursday in a phone interview that he and his attorney, Bill Bratton, of Dallas, intend to file a writ of habeas corpus with the trial court that alleges civil rights violations. He said he knows he must return to jail to complete the time Johnson gave him, but added, “I am happy doing that knowing I can expose these evil-ass, lying demons.”

“All this time, the state has lied on me and ruined my name and that comes to an end now,” Ukwuachu said. “I am finally going to expose all the lies they told about me, about where my roommate was at. My roommate was home that night and I am going to prove that with my expert witness.

“They continue to lie and say Penny was nowhere near my apartment. I am going to clear my name and I am going to sue them for $100 million. Believe that, s---. They have lied for so many years,” Ukwuachu said.

Bratton said he likely won’t ask the Court of Criminal Appeals to review the lower court’s opinion. He has 30 days to file a notice of appeal with the high court but said he thinks the two issues remaining were not their strongest points of appeal.

“I reversed the case twice already,” Bratton said. “I don’t know if you can reverse a case three different times.”

Ukwuachu said he hired an expert that shows Tagive was at his apartment when the sexual assault was reported. The woman testified she screamed and told Ukwuachu no multiple times. Ukwuachu claims Tagive would have heard the woman’s screams from his room.

“I would never continue to have sex with a woman who was screaming,” Ukwuachu said Thursday. “They are all just a bunch of lying bastards.”

The 10th Court Opinion includes an excerpt from an article in “The Texas Prosecutor” written by former McLennan County assistant district attorneys Robert Moody and Hilary LaBorde. The prosecutors wrote that the grand jury “is a tool that prosecutors often underutilize.”

“It is a tool we rarely use in McLennan County, but we will use it with witnesses who refuse to talk to detectives during the initial investigation or when we suspect witness tampering, as in this case. In front of the grand jury, we confirmed that the defendant’s alibi was an outright lie that had been concocted long after the sexual assault and that … Tagive was nowhere near Ukwuachu’s apartment that night.”

The prosecutors obtained Tagive’s cell phone records, which they said showed he lied about his whereabouts that night.

“We also locked him into his story so that we could prepare his cross-examination well in advance of trial, effectively neutralizing him as a defense witness,” Moody and LaBorde wrote.

Gray wrote in the latest opinion that “to whatever degree this might support Ukwuachu’s contentions, it was not part of the record considered by the trial court, and therefore, cannot be considered by this Court in support of this issue, even if we were to find that it established the very violation of which he complains on appeal.”

The Court of Criminal Appeals last remanded the case to the Waco intermediate appellate court in November 2020, with instructions for the three-judge panel to resolve the two remaining legal issues.

The state’s highest criminal court ruled 9-0 then that the Waco court erred by concluding the state introduced false testimony through cell phone records to impeach two defense witnesses.

In March 2017, the Waco court overturned Ukwuachu’s conviction and awarded him a new trial. The court ruled the trial court should have allowed into evidence text messages between the woman and a friend sent before the assault in October 2013.

The Court of Criminal Appeals reversed that decision in June 2018 and sent the case back to the Waco court, which, in turn, reversed it again in June 2019 on the cell phone records issue.

The woman who testified Ukwuachu sexually assaulted her at his apartment subsequently lost her soccer scholarship and reached a confidential settlement in her lawsuit against Baylor.