Yancy, Carl Edmond
Date Filed2014-12-31
DocketPD-1346-14
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
t316'fY
IS TOE
OOVSSt 08" CBXM3EEL JOVEBES
ā¢DIN
COURT OFCRIMINAL APPEALS
Cause m. FĀ®-134@-14
DEC 31201*
CARL BDMCMD YX8CV
ā¢ Appellant Abel Acosta, Clerk
vs.
3HE STATE (F iEXIĀ©
Appellee
FILED IN
_ _ . . __ _, COURT OF CRIMINAL APPEALS
18191Ā»5 rmm mmx*& msraicr CEC 31ZGft
H7 C&ttSE KDĀ« 1239111
Abel Acosta, Cierk
HONORABLE SHERRY RffiJfiCK
chief jusncg:
FIRST GOUW OF IBPPlftLS
SKfVXKB? fBR WLSCSSHIC^MAc BBVXEN
ā¢TOCJ-CID #1842638
Alfred Stsringfellow iaĀ»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, SuitĀ® 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, SuitĀ® 600
Houston, Texas 77002
Clinton A* Morgan
AĀ«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 AppealĀ©
disagresa on a material question of lew, that "the jury aao"Ā©
the determination that the Ā©GUKplainant's teetloraiy was credi
ble.
S&CSSJĀ© 2 Whether the first Court of Appeals <3@ci<3e3 en iitpoi:-
tant question of State anS Federal Lew, by the ctuĀ©sticneble
reference to appellant being In jail.
mmisim m<d AUTtosrnis,.. ,.*........*.Ā».....,. 2-4
GOGEIJUSXCH ā¢ ,..,..,.... 4, 5$
5"kAxT9x .#..>.....Ā».Ā» . . . . . . . . v . . . f > . . . Ā« . . . . . . Ā« . . * ...Ā».ā¦.....Ā«..Ā» Ā» Ā» ā¦ 5
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
,.....ā¢Ā»...Ā».Ā«ā¢*.....*..Ā».......... 4
Murray v. State, 24 Ā£.W.3d 681.................................... 4
Rcberson v. State, 16 S.W.Sd 156.......... 4
msm. msmmm
2"B U *o *Ā£3 * "j X. /^o Ā»*ā¢ā¢*#Ā»Ā»**ā¢*ā¢Ā»*ā¢**Ā»*Ā»*ā¢Ā»Ā»ā¢*ā¢ā¦ā¢ā¢ā¢**Ā«Ā«ā¢ā¢ā¢*ā¢ā¦**ā¢Ā«ā¢Ā»ā¢ā¢ā¢J
ill
Cause fto. EfH&4$-*14
117 TUB
CCHSST CF CSIMTOAL' AFKEAtS
ABOT3S .TEXAS
CARL EM23D X&KCy |
Appellant ā¢ .''
f .
**ā¢ Ā§ TRIAL CCtBT No. 1239111
THE STATE OF TUtAS *
Appellee Ā§
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 Ā©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
ā¢1~
February 25, 2013, jury assessed punishrrwit of fiourtyfivĀ© (4Ā§) 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 mnĀ® <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 1Ā§, 2014.
yy. Gmmxs mm review .
GUG83Ā© 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.
GSDHĀ© 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,Ā® 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
-2-
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 &aĀ© 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 freĀ© onĀ® who Ā«es never had
ejiy typa of sexual intercourse.
5Ā» 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*RĀ«
Vol. 3 at 176) [She did not Kent to leave her friends)(R.R. Vol. 3 at 176).
-3-
6* Lawrence $ho8$8Ā©on, Jr., director of thescpy at the Harris Couety Child-
rcn'a Mmemmnfc Center, "ConcEded that he alracst always testifies Ā©n behalf
Ā©f ths State, (R.R. Vol. 4 at 22), mi$ (admitted he has not last Ratesha,
Ā®&m her videotaped interview, ncr read ths police reportl(ftĀ»K. Vbl. 4 at
2-2) hie t&ititHsray was used 'by the State to bolster flatfishĀ®'s credibility.
ffsysical evidence to&e collected by Terra Uerr sad B?IA <nddancs *Ā©s tested
try Zury Phillips. The eutceaws teaĀ® 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 Ā£mtruGte*3 tfee jury to disregard Katssha's st&te&vtnt that "She
'os&isvscl* C-Ā»at Asigjellant had tossa in jail." (ro n> 15 f S) Stta 'first
Court of AppealĀ© concluded {-.hat the c&B^&ineftt's tĀ«s$t.:lwGny ssas not so iftflesv
eatery us to stiggwat th&c the trial court's curative .instruction mm inade
quate. Sss ti&xzm* 24 s.w.Sd at 092. Howsver, fistaShe's Ā«nfcir@ testimony*
Ā©van if glvan wisfccut Ā«woticn? its ccntejst s^d conveyances were emotionally
sieving and inflaoffletory, tsMe^ curative iĀ«*j*m:t*'?cĀ«s >?Ā©\ild fsot prevail the
jury from being unfairly prejudiced.
The Court Of Appsal on appellant's First ismĀ® agrees that thĀ« self testi-
leony would support ' [the jtrary reaching a rational decision) (MO* pg. 10 f 1),
but on Appellant's Third issue, the <ssĀ®e sritness .in her statassent jnagarditsj
Appellant [that she "believed* that Appellant hed fesen to jail) (SO, pg. 19
% 2) mĀ® not supportive <gnou$* to require Ā© Biatrial or a acre severe final
tostrttstioft. See Bauder v. $taaaa, 921 S.kf.2<3 at $Ā§8.
Appellant Shows withoui: the State's witnesses used to bolster the credlbilĀ£