Yancy, Carl Edmond

Opinion

t316'fY

IS TOE

OOVSSt 08" CBXM3EEL JOVEBES

•DIN

COURT OFCRIMINAL APPEALS

Cause m. F®-134@-14

DEC 31201*

CARL BDMCMD YX8CV

• Appellant Abel Acosta, Clerk vs.

3HE STATE (F iEXI©

Appellee

FILED IN

_ _ . . __ _, COURT OF CRIMINAL APPEALS

18191»5 rmm mmx*& msraicr CEC 31ZGft H7 C&ttSE KD« 1239111

Abel Acosta, Cierk

HONORABLE SHERRY RffiJfiCK chief jusncg:

FIRST GOUW OF IBPPlftLS

SKfVXKB? fBR WLSCSSHIC^MAc BBVXEN

•TOCJ-CID #1842638

Alfred Stsringfellow ia»tfc 1200 F.M. 65S

Rcabaron, Texas 77SS3

CBti& JffiBSDSBflr IS WIVED mmm w mm. msnm, akd cbusml WXKL 3WC&J

Honorable David mi&om 178131 District Court ef Harris County 1201 Franklin St. Houston, Texas 77002

CUM. OOBSSgL BOB i&gpa&aSf James Brooke

1314 Tfexess Ave., Suite 1300 Houston, Texas 77002

*EBJM, CCUI4SEL HS& AgggHflBB Devon Anderson Kfflyyf^ County fitaffifigt MttiMiwy 1201 Franklin, Suit® 660 Houston, ftexas 77002

Nathan Henui^sn Jtesiatenc* District Attorney 1201 F'ranklin, Suite 600 Houston, Texas 77002

Cteepio Michael iinetm 440 Louisiana, Suits 900 Houston, Tessas 77002

Devon Anderson mxxla County District Attcrnoy 1201 Franklin, Suit® 600 Houston, Texas 77002

Clinton A* Morgan A«frtstaafc Odtetxlct Afctjoaaiey 1201 Franklin, Suite 600 Kouston, Tesas 77802

IGEMHtW OF EAKSftES ...............v....................... 1 TORLE OF OTTE&TS.. 11 INDEX OP JOTRC8ITXES........................................... Hi JURISDICTION...... ........................................ 1 SXSRXEME&T/ CF THE CASE... *... 1 SSAfEMSOT OF PROCSjaJRAL HISTORx".. 1, 2 (BOUNDS FOR RIVES?............................................. 2 G&MZD 1 Whether the justices of tfee First Court of Appeal© disagresa on a material question of lew, that "the jury aao"© the determination that the ©GUKplainant's teetloraiy was credi ble.

S&CSSJ© 2 Whether the first Court of Appeals <3@ci<3e3 en iitpoi:-

tant question of State anS Federal Lew, by the ctu©sticneble reference to appellant being In jail.

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VESICATION.. .* 5 GERTIPICaTE'CF SERVICE. 6

ii

Sauder v. State, 921 S.W.2d 696.................................. 4 Brown v. State, 881 S.W.2d 582. 4 Glover v. State, 787 S.W.2d 544,.....•»...».«•*.....*..».......... 4 Murray v. State, 24 £.W.3d 681.................................... 4 Rcberson v. State, 16 S.W.Sd 156.......... 4

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Cause fto. EfH&4$-*14

117 TUB

CCHSST CF CSIMTOAL' AFKEAtS ABOT3S .TEXAS

CARL EM23D X&KCy | Appellant • .''

f .

**• § TRIAL CCtBT No. 1239111 THE STATE OF TUtAS * Appellee §

FE5TTTOW TOR aiBOagglCBflttBr RgWtW TO THE HONORABLE JODGB(S) OF SAID COURT* COMES HOW, Carl B&sond Yency, Appellant pro-se in the above styled and numbered cause, end respectfully files this his Petition for Discretionary Review (PER). The Appellant would show the Honorable Court the following in support thereof;

i . Jtmispimcaj

This Honorable Court has jurisdiction over all the natters and parties of this H3*.

,ttm STAaBjlEKT OF t^: CASE

A jury found Appellant, Carl a&aand Yaney, guilty cf the offense of aggra vated sexual assault of a child under fourteen years of age. After finding

true the ©negation in an enhanced paragraph that he had previously been

convicted of a felony, the- jury assessed Appellant's punishment at confinement for forty-five (45) years end a fine of ten (10) thousand.

ui. sfflTe^E^ cf m/xsmm. wesmat

Appellant usas found guilty at trial by jury on February 22, 2013. On

•1~

February 25, 2013, jury assessed punishrrwit of fiourtyfiv© (4§) years in the Texas Department Of Criminal Jiastlce-Cerrectional Institutional division, (herein after 1DCJ-CIB), and a ten (10) thousand, dollor fine. Appellant filed his notics of appeal on the mn® <3sy. The First Court of Appeals affir med the judgment of the trial court in its opinion issued July 24, 2014. Appellant filed a Motion for Rehearing. The Fisrst Court of Appeals denied Appellant's lection For Rehearing on SepteBiber 1§, 2014.

yy. Gmmxs mm review .

GUG83© 1: Whether the justices of the First Court of Appeals disagreed oil a natsrial question of law, that "the jury made the determination that

the complainant's testiEnony was cedible fin deciding that the jury reached a rational decision]" (MO, pgr. 10, f 1), necessary to the court's decision.

GSDH© 2: t^hether the First Court of' Appeals decided an important question

of State satfi Inderal law, by [the objectionable reference to appellant having been "in jail*1 and 'the pre&uaiption that the jury heeded the ferial court's

instruction] (M0 pg. 19 f 2), should be settled by the Court of Criminal Appeals.

Appellant oontends the first Court of Appeals erred in finding there was sufficient evidence to support the jury returning a guilty verdict. The State presented six (6) witnesses, one of which was the complainant, Natasha Ycunajblood. Two cf the witnesses as expert witnesses testified to the physical evidence found and not found in this case; J&ary Phillips,® n$A Analyst; and Terra Kerr, a Sssaal Assault mem Examiner. The remaining thrse witnesses for the State, contributed to timeline of events.

The witnesses testfcBony surroundjlirsg complainant as as follcwss 1* Katby Brown rioted K&tasha did not like to rsfsr to Appellant as her

3

father, and she further noted some animosity between Natasha and Appellant, (R.R. Vol. 3 at 27) "Brown described Appellant as a strict disciplinarian.n (R.R. Vol. 3 at 45) "She testified that in 200? she bscaais aware that Appel lant intended sx> Ksove to Ban Antonio, Texss, because he was being evicted from hie apertfaent." (R.R. Vol. 3 at 47) 2. Terra Kerr "testified that she performs bead -to toe eamiiimtlcns" (ft.R. Vol. 3 at 59-59) "Hatasha 'provided a history of vaginal aid anal penetra

tion by Appellant," (R.R. Vol. 3 et 73), including "Natasha's last vaginal penetration froa Appellant &a© on f&rch 31, 2099. (R.K. Vol. 3 at 74). She noted that Natasha informed her that Appellant never used contraceptives,

(R.R. Vcl. 3 at' 75), yet [Kerr) "testified that the examination did not reveal

any trass to Hatasha's vagina, hytcen, cervix, or perineum." (R.R. Vol. 3 at 80-84) Kerr "admitted that the only evidence of a ssxual assault was

Batashsls testimony." (R.R. Vol. 3 at 105). 3. 2ury "Phillips testified that die cospered tMA found on Natasha** raginal swabs, oral swabs, fingernail s^aha,- and panties with Appellant's OKA (R.R. Vol. 3 at 112). Appellant was excluded as a DMA contributor to any of the substances tested, (R.R. Vcl. 3 at 113) BMA found on the various swabs and the panties d&S not Eatch Appellant's OKA* (R.R. Vol. 3 at 117) 4* Susan Obhiaabo, at the Harris County Children's Assessment Center, her "role was tc obtain the facts from the child. (R.R. Tfol* 3 at 124) She conceded that Natasha's answers about intercourse with Appellant were v&sy vague." (a.R. Vol. 3 at 130) as it should be fre© on® who «es never had ejiy typa of sexual intercourse.

5» Bataaha Youagblood "testified she finally decided to run away frcaj Appel lant whai he told her that he was isoving them to San Antonio, Tessa, (R*R« Vol. 3 at 176) [She did not Kent to leave her friends)(R.R. Vol. 3 at 176).

6* Lawrence $ho8$8©on, Jr., director of thescpy at the Harris Couety Child- rcn'a Mmemmnfc Center, "ConcEded that he alracst always testifies ©n behalf ©f ths State, (R.R. Vol. 4 at 22), mi$ (admitted he has not last Ratesha,

®&m her videotaped interview, ncr read ths police reportl(ft»K. Vbl. 4 at 2-2) hie t&ititHsray was used 'by the State to bolster flatfish®'s credibility.

ffsysical evidence to&e collected by Terra Uerr sad B?IA <nddancs *©s tested try Zury Phillips. The eutceaws tea® no shoedng of a SsKual Assault, sad snlike *** B^am v. SMte, 881 S.W.Sd SS2; C&over v, Stats. 7S7 S.W.aS 544; and

ffit^sasea v. State, IS S.W.Sd IBS,* the SKA evidence in this case pxoves the Appellant was jaot the perpetrator as Natasha's statement to Terra Kerr or

J3ata#hiafft testiitstsy In coat.

The Court £mtruGte*3 tfee jury to disregard Katssha's st&te&vtnt that "She 'os&isvscl* C-»at Asigjellant had tossa in jail." (ro n> 15 f S) Stta 'first Court of Appeal© concluded {-.hat the c&B^&ineftt's t«s$t.:lwGny ssas not so iftflesv eatery us to stiggwat th&c the trial court's curative .instruction mm inade quate. Sss ti&xzm* 24 s.w.Sd at 092. Howsver, fistaShe's «nfcir@ testimony* ©van if glvan wisfccut «woticn? its ccntejst s^d conveyances were emotionally sieving and inflaoffletory, tsMe^ curative i«*j*m:t*'?c«s >?©\ild fsot prevail the

jury from being unfairly prejudiced.

The Court Of Appsal on appellant's First ism® agrees that th« self testi-

leony would support ' [the jtrary reaching a rational decision) (MO* pg. 10 f 1), but on Appellant's Third issue, the <ss®e sritness .in her statassent jnagarditsj

Appellant [that she "believed* that Appellant hed fesen to jail) (SO, pg. 19 % 2) m® not supportive <gnou$* to require © Biatrial or a acre severe final

tostrttstioft. See Bauder v. $taaaa, 921 S.kf.2<3 at $§8.

Appellant Shows withoui: the State's witnesses used to bolster the credlbil£