FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA,
NO. 12-1039 HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE
Bofill Duhe District Attorney - COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
M. Ikerd COUNSEL FOR: Defendant/Appellant - Dirk Douglas
Thomas aka Dirk Thomas
Thomas Pro Se Defendant/Appellant
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and Candyce G. Perret, Judges.
ULYSSES GENE THIBODEAUX, CHIEF JUDGE.
Dirk Douglas Thomas was charged with one count of sexual
battery, and a jury unanimously found him guilty of the
lesser included offense, attempted sexual battery, in
violation of La.R.S. 14:27 and La.R.S. 14:43.1. He was
sentenced to eighteen months imprisonment at hard labor, to
be served without the benefit of probation, parole, or
suspension of sentence. On appeal, Thomas asserts that the
evidence was insufficient to support his conviction and
challenges his sentence as unconstitutionally excessive.
concluding no non-frivolous issues exist upon which to base
an appeal, appellate counsel has filed a brief requesting
only a review for errors patent, and he now moves to withdraw
from the appeal.
following reasons, this court grants counsel's Motion to
Withdraw and affirms Thomas's conviction and sentence.
(1) whether the record reveals on its face errors patent
sufficient to reverse Thomas's conviction and sentence;
(2) whether the evidence introduced at trial, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979) standard, was insufficient to support
Thomas's conviction of attempted sexual battery in
violation of La.R.S. 14:27 and La.R.S. 14:43.1;
(3) whether the sentence imposed by the trial court is
excessive, in violation of the Eighth Amendment of the
Constitution of the United States and La.Const. art. 1,
§ 20; and
(4) whether appellate counsel has thoroughly reviewed the
record and correctly determined that no non-frivolous issues
exist such that he may be permitted to withdraw from the
AND PROCEDURAL HISTORY
April 5, 2012, Defendant Dirk Thomas's adult biological
daughter, D.T.,  contacted law enforcement alleging that
Thomas had sexually assaulted her on the night of April 3,
2012. The State filed a bill of information charging Thomas
with one count of sexual battery. Thomas waived formal
arraignment on all charges and pled not guilty. After a trial
on the merits, the jury unanimously found Thomas guilty of
attempted sexual battery. The trial court sentenced Thomas to
eighteen months imprisonment at hard labor without the
benefit of probation, parole, or suspension of sentence.
time of trial, D.T. was twenty-eight years old. She was the
first witness called to testify. On direct examination, D.T.
testified that she and her father had an estranged
relationship, visiting each other sporadically over the
years, with both parties living in different parts of the
country at different times. As she grew older, she sought to
build a relationship with her father, and the two became
close after she became pregnant with her son.
owned and operated several properties in New Iberia,
Louisiana. Because D.T. was unable to afford living on her
own, Thomas offered to let her and her son live in his
townhouse in New Iberia, and she agreed and stayed there
until she joined the Army in 2008. In 2010, D.T. left the
Army and returned to Louisiana. D.T. stated Thomas again
offered to let her live in the New Iberia townhome and that
Thomas additionally offered to let D.T. work for him in
managing his properties, which she accepted. D.T. moved into
townhome A with her son, who was four or five at the time,
while Thomas lived in townhome B. She further stated that due
to ongoing renovations, Thomas and whoever else was working
would enter the townhome at any given time.
testified that her relationship with her father was growing
into both a friendship and a father-daughter relationship.
They began talking and texting often, and D.T. found that she
and Thomas had a lot in common. D.T. identified State's
Exhibit Number 1 as a printout of the text messages between
herself and Thomas. Thomas is listed in her contacts as
"Dad Thomas." As discussed below, the trial court
ruled the printout of the text messages to be inadmissible,
but it allowed the introduction of State's Exhibit Number
2, a download of the information from D.T.'s cellular
phone containing the same information.
night of April 3, 2012, D.T. testified that she and Thomas
went upstairs to watch a movie in her bedroom while her son
was asleep in the next room. Thomas commented on her body,
and then licked her buttocks, which D.T. laughed off at the
time, and Thomas left the room afterwards. Thomas returned
and then attempted to remove D.T.'s underwear. After
repeatedly telling Thomas to stop, D.T. realized that Thomas
was not joking and she fought to keep her underwear on.
Thomas then pinned her down with his upper body while using
his hand to remove her underwear, and proceeded to lick her
genitalia several times. Thomas left around 1:00 a.m. when
the movie was over, and D.T. tried to call her boyfriend.
When her boyfriend did not answer, she testified that she
just lay there and cried in disbelief at what her father had
done to her.
next morning, D.T. called her mother to help her find a new
place to live. When her mother asked why, D.T. initially told
her that she noticed things around the townhouse that made
her uncomfortable, like that her underwear had been rummaged
through and only Thomas could have done so. While looking for
apartments, D.T. eventually told her mother the details of
the night before. As a result of the conversation with her
mother, D.T. called the police station to ask if she could
record conversations as evidence. After someone at the police
station told her that she could, she began recording her
conversations with Thomas. When D.T. believed she had
obtained substantial recordings, she then sought out law
provided law enforcement with four separate recorded
conversations, all of which the listener was able to identify
Thomas as the person on the other end of the conversation. On
direct examination, D.T. identified State's Exhibit
Number 3 as copies of the recordings she had made. D.T.
recognized the exhibit from her meeting with the prosecutor
when D.T. verified both that she was on the recordings and
that she had made the recordings, after which she signed and
dated the exhibit. D.T. listened to the recordings and
confirmed they were accurate. D.T. identified the speakers in
the conversations as herself and Thomas. She further claimed
that she made the recordings to support her claims because
there was no physical evidence of the incident.
cross examination, D.T. was unsure of whether the incident
occurred on April 2 or April 3, because four years had since
passed. However, D.T. was able to confirm that a day or two
before the incident, Thomas told her over lunch that D.T.
would not be in his will as he preferred to leave his estate
to his Caucasian stepchildren instead. She insisted that she
was not angry, nor was there an argument over the will, but
rather a general conversation. On redirect examination, D.T.
elaborated that she was not upset because she did not expect
to be in his will as the two had never had much of a
confirmed Thomas was able to completely remove her underwear
during the incident. She stated that she gave up both
physically and emotionally, and eventually stopped struggling
because she did not want to hurt him and just wanted him to
stop. She did not recall telling the officer she stopped
fighting. D.T. stopped fighting because it was ineffective
anyway; it was not stopping him.
testified that she continued living at the townhouse for
about a week and a half after the incident until the time
Thomas was served with the restraining order, which occurred
a few days prior to his arrest. D.T. also continued to work
for and communicate with Thomas in an attempt to gather
evidence to prove her claim, as there was no other evidence.
Having to communicate with Thomas bothered D.T. because
Thomas acted as if everything was okay, and so she felt like
she too had to act as if everything was okay when speaking to
counsel asked D.T. to explain some of her text message
conversations with Thomas as represented in State's
Exhibit Number 2, after suggesting that Thomas lived with
D.T. and that they had a consensual sexual relationship. When
defense counsel further suggested that D.T.'s
conversations with Thomas were inappropriate, D.T. responded
that she spoke to him in the same way that she spoke to her
mother and sister. Defense counsel then inquired into the
conversations she had with other family members concerning
her various relationships, to which D.T. firmly responded she
was only in one relationship at the time, and further that
she was excited to introduce her boyfriend to her father as
she had never introduced anyone to her father before. D.T.
clarified she told her father about the various men who had
"hit on" her, but she was only in a relationship
with the one person.
the State asked D.T. about the text messages, D.T. recalled
Thomas texting her a message that read, "I have seen you
walk away. I can't handle you on my best day. You in
stilettos, I'd just be a minute, man. LMAO." Another
message from Thomas read, "Your father is a well-endowed
man that hits really hard and lasts a very long time. In
other words, I'm a cunt's worst nightmare." At
the time, D.T. believed Thomas was joking with her in a
sexual manner. At the time of trial, however, D.T. had come
to realize the messages indicated Thomas did not see her as a
daughter, but rather as a woman in a sexual fashion.
Burgess, D.T.'s mother, testified that she and Thomas
were never married, but that they dated and lived together
for about three years. She also stated that Thomas had
physical contact with D.T. maybe three times throughout
D.T.'s adolescence, but that he financially supported
D.T. from the ages of five to eighteen.
Burgess recalled that on the morning of April 4, D.T. came to
her house to talk, and she asked D.T. if anything was wrong
because something seemed a little different. Initially, D.T.
responded that nothing was wrong, but eventually told her
mother that something bad had happened. Ms. Burgess again
asked D.T. what was wrong when D.T. began shaking, crying,
and hyperventilating. Ms. Burgess recalled the details of the
incident as relayed to her by D.T., stating that Thomas had
forced D.T.'s legs open and performed oral sex on her.
Burgess testified that she then advised D.T. to call the
police, but that D.T. was afraid initially. Ms. Burgess then
suggested that D.T. stay at the townhouse for a few days to
collect evidence, as Thomas would become aware that D.T. told
her mother of the incident if she were to move in with Ms.
Burgess, and "cut all ties" thereafter. Shortly
after the incident, Ms. Burgess recalled that she noticed
great changes in D.T., and that D.T. was not like herself.
After a couple of months, however, D.T. would no longer speak
of the incident with Ms. Burgess.
Ashley Hammons testified at trial that she was employed by
the Iberia Parish Sheriff's Office as a sergeant in
detectives. She was able to record D.T.'s recordings
using her work phone and transferred the files onto a compact
disc. The court played the compact disc for the jury. The
State then rested subject to rebuttal. State's Exhibit
Number 3 contains four recordings labeled: 33271; 47209;
47210; and 47831.
47209, D.T. explained that she was not good face-to-face and
that she liked their relationship. D.T. asked
"Daddy" to listen and asked him the reason why he,
"you know." "Daddy" promised they would
talk but not like "this." D.T. said she would like
to go with him and continue to work for him.
"Daddy" said there were several reasons for
"what transpired," and one reason was that
"you always say people make you do things you don't
want to do."
47210, "Daddy" talked about being a very
strong-willed person. D.T. asked if it was because she did
things she did not want to do. D.T. then asked if her
"Daddy" wanted to have oral sex with her because he
did not think she was his daughter. "Daddy" asked
what she was talking about and said he was lost. When D.T.
repeated the sentiment that she thought the reason he did it
was because he did not think she was his daughter,
"Daddy" said they would talk about it later. D.T.
explained that she liked their relationship and that she did
not want him to look at her as if she was not his daughter.
"Daddy" said for D.T. to take her son on his field
trip and that they would talk when he got back.
47831, a male voice answered D.T.'s call and stated,
"Dirk speaking." D.T. expressed that the two had
"never really talked about anything," to which
"Dirk" responded that they would talk about it when
D.T. settled down. The following exchange occurred:
Female voice: "No, okay, see, I can never settle down
because it's always on my mind. I feel like you never
even apologized for it. Like . . ."
Male voice: "Listen, listen, I don't like talking
over the phone. What happened, it happened in person. We
gonna talk about it in person."
Female voice: "All right."
Male voice: "Okay? Girl, don't, don't think
about it. It was a test. I had to test you. I had to test
Female voice: "You had to test me by going to the
extremities of taking off my underwear and doing all of that?
Daddy, are you serious?"
Male voice: "I'm serious. You have to go to the
extreme with you because (inaudible) you don't know you
like I know you. I found out, I found out more about you,
now, than I ever did."
Female voice: "Okay, but even, even if so, like, why
would I let my Daddy do that to me. Like, okay, why
wouldn't I be, like, okay, really?"
Male voice: Hold up, hold up, hold up. I'm not going to
discuss it over the phone.
Female voice: "All right, all right. Bye, Daddy."
first witness called by the defense was Robert Hamilton,
D.T.'s cousin and Thomas's nephew. Mr. Hamilton was
present at the lunch meeting at which Thomas informed D.T.
that she would not be in his will. Mr. Hamilton testified
that the conversation was more like an argument, and that
D.T. was loud, mad, and appeared upset about the situation.
On cross-examination, Mr. Hamilton testified that he had
previously worked for Thomas for two and a half years. Mr.
Hamilton also testified that he had never seen any sexual
assault occurring between D.T. and Thomas.
second witness called by the defense was Felicia Thomas,
Thomas's sister. She testified that prior to the
incident, Thomas was living in Ann Arbor, Michigan. Ms.
Thomas then stated that Thomas occupied the same townhouse as
D.T. and her son, and that the other townhouse only contained
tools and equipment for work. Ms. Thomas also testified that
she had a good relationship with D.T. prior to the incident.
then testified on his own behalf, and maintained that
D.T.'s story was a complete fabrication. He testified
that on the evening of the incident, he watched D.T.'s
son while she went out with her boyfriend. D.T. brought home
some movies and brought them upstairs. When Thomas went
upstairs to get the movies, D.T. was already watching one and
said she wanted to watch the movies upstairs. Thomas
initially sat on the bed to watch the movie but was
uncomfortable because D.T. was wearing undergarments and a
short robe while she laid on the bed. Thomas went downstairs,
and D.T. followed to ask him what was wrong. Thomas replied
there was nothing wrong and followed D.T. back upstairs,
where he sat on the floor to finish watching the movie.
testified that in the days following the alleged incident,
his relationship with D.T. was fine, and they discussed
business as usual. Thomas gave D.T. a new cell phone, but she
refused to use it because she had just gotten a new phone.
Problems continued to arise when he required D.T. to have her
phone adapted to his business and D.T. failed to comply.
explaining the phone conversations, Thomas believed that
D.T.'s mother "had put her up to something." He
stated that D.T.'s mother had great influence over her
and often sought to undo the progress Thomas had made in his
relationship with D.T. In the first conversation, Thomas said
that he had no idea what was going on; he further alleged
that D.T. was seeing someone once a month for her depression
prior to the incident. In the third conversation, Thomas
expressed that he was growing frustrated with their
conversations, continuing to believe that D.T. and her mother
were up to something. He testified that he did not hear D.T.
when she mentioned him licking her. Thomas stated that when
he said "what happened was between us," he was
referring to the lunch conversation about the will. In
reference to the statement, "it was a test," Thomas
denied ever "exposing her physical person." Thomas
continued that he was testing D.T. with multiple things; he
first wanted to see D.T.'s reaction to not being in his
will, but did not explain what the other tests were.
cross-examination, Thomas said he did not recall sending D.T.
the following text message about tongue piercings:
Tongue piercings is [sic] one of the most popular piercings.
It's shocking, provocative, and fantastic for oral sex
for both sexes. But at the same time, no one needs to know
you have it. Janet Jackson, Keith Flint from Prodigy, Mel B
from Spice Girls, and Malcolm Jamal Warner from The Cosby
Show all sport pierced tongues.
further alleged the text message about him being "well
endowed" was not directed at D.T., but rather was a joke
between Thomas and D.T. arising from a situation in which one
of Ms. Thomas's colleagues had approached him at Ms.
Thomas's house. Thomas acknowledged sending the text
about D.T. in stilettos, but complained that it was taken out
of context. Thomas further claimed the text, "I want to
give it twisted baby" was a typo, and he meant to send,
"Don't get it twisted, baby" instead.
denied ever commenting on or performing oral sex on D.T.,
further stating that he thought it was a nasty thing to do to
another person. Thomas then volunteered, "Now, if she
would have said I had intercourse with her, that would have
been a different story." Thomas then gave an account of
how D.T. had told him, in detail, about how her boyfriend had
performed oral sex on her. Thomas next asserted he thought
the comments about "the other night" and oral sex
referred to him finding D.T. performing fellatio in the
townhouse parking lot in March.