                                         "7 52-15
                        IN   THE    COURT   OF   CRIMINAL    APPEALS             0R1

CHARLES   ANTHONY GREEN,           PETITIONER

                                                     §
              vs.                                    §             CASE    No.   PD-0752-15
                                                     §
                                                     §                       RECEIVED IN
                                                     §                     COURT OF CRiWAL APPEALS
THE   STATE   OF    TEXAS,   APPELLEE
                                                                                 SEP 14 2015

                                                                           Abel Acosta, Clerk
                       COURT OF APPEALS CAUSE No.        02-14-00426-CR




                                                                               FILED IN
                              FROM THE 432nd DISTRICT COURT               C°WOFCR,M/^AppEALs
                                   OF TARRANT COUNTY,    TEXAS
                                                                                 SEP 17 2015

                             POST    DISCRETIONARY       REVIEW              Abe/Acosta, Clerk




                                                                     PETITIONER



                                                             CHARLES      ANTHONY GREEN

                                                             #1959504        WYNNE UNIT

                                                                    810     FM 2821

                                                                 HUNTSVILLE,      TEXAS.
                                                                                   77349.
                              TABLE OF CONTENTS




IDENTITY                                              i


INDEX OF AUTHORITIES                              .   ill


TABLE OF CONTENTS                                     ii


INDEX OF AUTHORITIES                                  iii


STATEMENT OF THE CASE                                 1,

ISSUES PRESENTED                                      2,

STATEMENT OF PROCEDURAL HISTORY                       1,

ARGUMENTS                                             3,

PRAYER                                                10,

INMATES DECLARATION                                   11,

CERTIFICATE OF SERVICE                                11,




                                      11
                                     INDEX OF AUTHORITIES



CODE OF CRIM.   PROC     37.09                                               3,

CODE OF CRIM.   PROG.    38.14                                               10,

PENAL CODE                1.07                                               3,10

PENAL CODE CODE           12.32                                              3,4


PENAL CODE                12.33                                              4,

PENAL CODE                43.01                                              3,

PENAL CODE                43.02                                              3,

PENAL CODE                22.011                                             3,


TEXAS RULES OF APP. PROC           66.3(c)                                   3,

TEXAS RULES OF APP. PROC'.-"'      66.3(f)                                   3,

TEXAS RULES OF EVID. 803(2)                                                  6,8,




APOLINAR v. STATE, 155 SW-3d 184 (Tex.Crim.App. 2005)                        6,

BANKS v. REYNOLDS, 54 F.3d 1508 (10th.Cir. 1995)                             4,

CLEWIS v. STATE, 922 3W.2d 126 (Tex.Crim.App. 1996)                          8,

COLEMAN v. STATE, 145 SW.3d 649 (Tex.Crim.App. 2004)                         8,

JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979)                                   6,7,11,

MALIK v. STATE, 953 SW. 2d 234 (Tex.Crim.App. 1997)                          7,

MATTIA8 v. STATE, 731 SW.2d 936 (Tex.Crim.App. 1987)                         3,

MIDENCE v. STATE, 108 SW.3d 564 (Tex.App. Houston [14th Dist] 2003)          7,

MILLER v. WAIWWRIGHT, 798 F. 2d wainwright, 798 F.2d 426 (11th.Cir. 1986)    9,

OLDEN v. KENTUCKY, 109 S.Ct. 420 (1988)                                      4,5,10,

ROBERTSON v. STATE, 163 SW.3d 730 (Tex.Crim.App. 2005)                       10,

REDMOND v. KINGSTON, 240 F.3d 590 (7th.Cir. 2001)                            8,

THOMPSON v. STATE, 9 SW.3d 808 (Tex.Crim.App. 1999)                          4,
U.S. V. CRONIG,         104 S.Ct. 2039, (1984)                               3,
U.S. V. OLANO, 507 U.S. 725, (1993)                                          4,10,
U.S. v. STOVER, 329 F.3d 859 (D.CCir. 2003)                                 4,
U.S. V. TUCKER, 345 F.3d 320 (5th.Cir. 2003)                                4,


                                             in
                                                  CASE    NO.   PD-0752-15

                                 COURT       OF    APPEALS      No.    02-14-00426-CR

                      ... ,-                 TRIAL COURT No.            1303703D


CHARLES ANTHONY GREEN, Petitioner                                          §         IN THE COURT OF
                                                                           §
                                                                                     CRIMINAL    APPEALS




THE STATE OF TEXAS, Appellee                                               §         AUSTIN,    TEXAS.



                                     PETITION       FOR    DISCRETIONARY        REVIEW



TO:    THE HONORABLE JUSTICES OF SAID COURT:



       Comes Now, Charles Anthony Green, petitioner, pro-se, and files his petition
for discretionary review. He shows the Court the following:

                                                  STATEMENT OF THE CASE

      Charles     Anthony             Green, petitioner, was indicted and convicted of aggravated
sexual     assault              in    Tarrant      County,      Texas on April 10, 2014, on a plea of not
guilty.          On      October        3,     2014,     the petitoner was sentenced to 50 years in the
  Texas      Dept.             of Criminal Justice, Appeal was taken, and is the subject of the
present judicial action, Post Discretionary Review.


                                         STATEMENT OF PROCEDURAL HISTORY


  The Court of Appeals hooded down its opinion on June 4, 2015, to affirm the

appellate Charles Anthony Green conviction.

      No motion for rehearing was filed.


                                                       IN HIS PETITION


      In   his    petition             for    discretionary           review, the petitioner Charles Anthony

Green      files          four       grounds      for discretionary review into the Court of Criminal

Appeals in his petition.




                                                                (1)
                                           GROUNDS FOR REVIEW

                                                     ONE
 The Court of Appeals committed a plain error in failure to observe the conflict
ing stories of fabricated, false allegations by the states witness, demonstrating
the     evidence that appellant used a firearm to commit sexual assault was legally
insufficient        evidence       based     on   false    testimony   to support the finding that
he used and exhibited a deadly weapon. (RR5:88-90).


                                                     TWO,

 The Court of Appeals applied only a prejudice approach to the sufficiency of the
evidence        in adopting against the rules of evidence false hearsay sexual assault
allegations when the testimony by the states witness Dawn Johnson clearly demon
strated     contradicting erroneous false sexual assault allegations. (RR5:90-117).

                                                    THREE


  The Court of Appeals failed to observe the events alleged as sexual assault and
her     identification       of     the    defendant Green was with the intent to deceive the

Court     that     she    did     not know the defendant Green, when she knew the defendant

Green    personally         from   prior     sexual agreement's in a consentual sex agreement
between     the     two     that    turned    a    drug deal to go bad for payment, was a plain
errory that was obvious,. (RR5:92) (Compare: RR5:102).


                                                    FOUR


  The Court of Appeals erroered by failing to find the relevant fact's, the sexual
incounter was consentual. The Court of Appeals failed to apply the law to the fact's
the firearm allegations was insufficient to support a finding of use and exhibited.
      "Deadly     Weapon"     means    a firearm, or anything manifestly designed, made, or
adopted     for     the     purpose of inflicting death or causing serious bodily injury.
  In this case, the states witness made no mention that she felt her life was

ever put in danger of serious body injury, or death. (RR5:88-104).




                                                     (2)
                                         ARGUMENT



 In this case of Charles Anthony Green, petitioner the Court of Criminal Appeals

should     grant   review;   because   the   Court   of Appeals has decided an important

question    of     State and Federal law in a way that conflicts with the applicable

decisions of the Court of Criminal Appeals, and The Supreme Court of the United

States. Tex.R App. Proc. 66.3(c). That requires for the Court of Criminal Appeals

to exercise its judicial power, review the record ""on it's own motion", and exer

cise the Court of Criminal Appeals power of supervision 66.3(f)•

                                 LESSOR INCLUDED OFFENSE

                                CODE OF CRIM. PROC §37.09

  At best, the petitioner Charles A. Green should have only been charged with the

offense of prostitution: PENAL CODE §43.01 43.02(a)(2)(b).

   (a) A person commits an offense if he knowingly:
   (1) offers to engage, agrees to engage, or engages in sexual conduct for a
         fee; or

   (2) solicits another in a public place to engage with him in sexual conduct'
         for hire.

   (b) An offense is established under Subsection (a)(1) whether the actor is to
   receive or pay a fee.
       An offense is established under Subsection (a)(2) whether the actor solic
         its a person to hire him or offers to hire the person solicited.

  The Court of Criminal Appeals held in: MATTIAS v. STATE, 731 SW.2d 936, 937

(Tex.Crim.App. 1987), "A person may knowingly offer to engage in or agree to en

gage in sexual conduct for a fee and commit an offense under §43.02(a)(1).—

without have intent to actually consummate the sexual conduct. [l]ntent to con

summate an offer or agreement to engage in sexual conduct is not an element of
the offense of prosecution under §43.02(a)(1).

  In addition, the petitioner Green further argues that his counsel on direct

appeal was ineffective "Constructively" denying him counsel on direct appeal,

U.S. v. CRONIC, 104 S.Ct. 2039, (1984) in addressing the Court of Appeals with
a issue of guilt; citing PENAL CODE §22.011(f); alleging a sexual assault as a

second degree felony under PENAL CODE §12.32.


                                             (3)
  Citing PENAL CODE §12.32 FIRST DEGREE FELONY PUNISHMENT was out of place, an

prejudicial to encourage the Court of Appeals to affirm his conviction informing

the Court of Appeals of a "matter of defense", and §12.33.     BANKS v. REYNOLDS,

54 F.3d 1508, 1515-16 (10th.Cir. 1995).      However, the petitioner Green can not

raise his ineffective assistance of counsel claims on direct appeal because the

record is not developed to raise ineffective assistance claims. THOMPSON v. STATE,

.9 SW.3d 808, 813-15 (Tex.Crim.App. 1999).


                                    ISSUE ONE

                                   PLAIN ERROR


    The Court of Appeals failed to observe the conflicting "fabricated false"

stories by the states witness Dawn Johnson throughout her testimony at trial, was

 a obvious plain error on record. U.S. v. OLANO, 507 U.S. 725, 733-34 (1993).

  A Court of Appeals can correct an error not raised at trial only if there is a

plain error that effects substantial rights. U.S. v. OLANO, 507 U.S. 725, 732

(1993); U.S. v. TUCKER, 345 F. 3d 320, 334 (5th. Cir. 2003).    The contemporaneous

rule applies to claims of improper admission or exclusion of evidence. U.S. v.

STOVER, 329 F.3d 859, 868 (D.C Cir. 2003).

  A simuliar case occurred in: OLDEN v. KENTUCKY, 109 S.Ct. 480, (1988). In the

case of Olden, the petitioner was convicted of sodomy, (sexual assault), the

States witness Starla Matthews made a false complaint of sexual assault to pro

tect her dignity, from other's finding out that she had consentual sex with a

black man, where as here petitioner Charles Anthony Green in this case is a

"black male", and Dawn Johnson is a white female,    in Green's argument a pro

stitute with a drug addiction.   In Olden, Matthews and Bill Russell were both

married to and living with other people at the time of the incident, they     were

apparently involved in an extramarital relationship. By the time of trial the

two were living together, having separated from thier respective spouses.

  The petitioner's theory of the case was that matthews concocted the rape story

to protect her relationship with Russell, who would have grown suspicious upon


                                       (4)
  seeing her disembark from Harris car. In order to demonstrate Matthews motive to

  lie, it was crucial, petitioner contended, that he be allowed to introduce evidence

e of Matthews and Russel's current cohabitation. Over petitioner's vehement object

  ions, the trial court nonetheless granted the prosecutor's motion in limine to

  keep all evidence of Matthew's and Russell's living arrangement from the jury.

      Moreover, when the defense attempted to cross-examine Matthews about her living

  arrangements, after she had claimed during direct examination that she was living

  with her mother, the trial court sustained the prosecutor's objection.
           Court
      The reversed Oldens conviction based on the fact's that he was denied his right

  to cross-examine the witness Matthews about her relationship with Harris , and

  more, that gave her reason to fabricate, and lie to make a false claim of sexual

  assault.        OLDEN v. KENTUCKY, 109 S.Ct. 480, 484-86, (1986).

      Here, in the case of Green, Johnson's testimony was central, crucial to the

  prosecutor's case. Her story directly contradicted by that of the petioner Green.

        Obvious    on record,       the states witness Dawn Johnson alledged that she was

 at O'Reilly's Auto Parts store to pick up oil and related supplies so her father

 could change the oil in her car. (RR5:82-83), located in Tarrant County. (RR5:84).

      In this case of Green, the O'Reilly's Auto Parts store is in a location large

 shopping area with large crowds of customer's daily at the busy part of the day

 3:00pm., ["obvious in plain view"] to all part[s] of the area in sight of public

 view.      O'Reilly's Auto Parts store is very large with a constant busy revolving

 door     store    consistent and constantly with customer's in, and out of the store

 in public        view,    and    the surrounding store[s] customer's in the busy parking

 lot under the            hood's of their automobiles, or inspecting a needed part to put

 on     their   automobile       with employees    assistance in and outside the O'Reilly's

 with    the part's        they may need,     most obvious is the store itself with large

 "showroom" window's 6-to-8 feet height, and wide, with employee's assisting the

 customer's       in   and   outside   both with        clear and obvious "public view" of the

 parking lot in plain and obvious view, where Johnson alledged the offense had to


                                                  (5)
begin    to      occur,    and       the   fact's in front of a large crowd of people of every

body    in the store,             and out       of the store in the large shopping, and parking

lot area, (RR5:84-88).                It would be very difficult for a man in a mask, (stocking

mask)    to not "obviously" be seen, and during by the customer's at the busiest

time of the day 3:00pm by the customers in and around the store, and the employeee's.

(RR5:90-94).          Yet alone,           had Johnson      felt that her alledged attacker would

have    attacked      her, "Johnson's Scream" would have drawn attention. (RR5:88.96).

  A masked man walking in a public view with customer's all around is impossible

without       being noticed, and to alert the police. (RR5:88-90)..              Then there after

driving in public with a mask on his face in "plain view" around 3:00pm. (RR5:92).
  What should be the most "alarming" to the Court of Appeals, is that the states

witness       Johnson alledged that her assailant had on a see through mask (stocking

cap)     mesh,     pulled       it    off of him, and put it on her, Johnson. (RR5:92-93).

  Therefore, providing a window of opportunity for identification. (Id.RR5:92.102).

        Had that the Court of Appeals observed the states witness demeanor on paper

in the record             of    her    testimony, and all of the states witness contradicting

events, and false occurrances, the Court of Appeals would have found the alleg-

gtion's by the states witness Dawn Johnson was far from the truth, and reversed

the     appellant     Charles         Green    conviction with     the instructions of acquittal,

DEMONSTRATING THE STATES WITNESS Johnson's allegation's were fabricated hearsay.

  That did not meet the Excited Uttterance.                   Hearsay Exception. Texas and Federal

Rules of Evidence 803(2). APOLINAR v. STATE, 155 SW.3d 184, 186-87 (Tex.Crim.App.

2005).

  Therefore,        the        Court of       Appeals could    not have found the relevant fact's

raised in the        appeal that the appellant Green used or exhibited a gun in the

single ground by appellate counsel on direct appeal.                   The Court of Criminal

Appeals should reverse and remand back to the court of Appeals for a proper

sufficiency of the evidence review. JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979).




                                                      (6)
                                                        ISSUE TWO



     The Court of Appeals applied only a prejudice approach to the sufficiency of
the     evidence         in   adopting        against     the rules of evidence false hearsay sexual
assault allegations when the testimony by the states witness Dawn Johnson clearly
demonstrates           contradicting erroneous false sexual assault allegations. (RR5:90-
117).

      In    MALIK      v.     STATS,     953    SW.2d 234, 239-40 (Tex.Crim.App. 1997), the court

held:

           "No longer shall sufficiency of the evidence be measured by the jury charge
        actually given. [M]easuring by the indictment is an inadequate substitute be
        cause some important issues relating to sufficiency—e.g. (in this case of
        Green sexual assault) the law of transferred intent—are not contained in

        the indictment. [Sufficiency of the evidence should be measured by the
       .elements of the offense as defined by the hypotheticall'y correct jury charge
        for      the     case.    Such     a     charge   would be one that accurately sets out the
        law,      is     authorized      by     the indictment, does not necessarily increase the
        States burden of proof or unnecessarily restrict the State's theories of
        liability, and adequately describes the particular offense for which the de-
        fendent was tried. [T]he standard we formulate today ensures that a judgment
        of acquittall is reserved for those situations in which there is an actual
        failure in the State's proof, of the crime rather than a mere error in the
        jury charge submitted,                 see also MIDENCE v. STATE, 108 SW.3d 564, 565 (Tex.
        App. Houston [14th Dist] 2003).

     The standard for reviewing sufficiency of the evidence is whether any rational

trier       of   fact       could      have    found the essential elements of the offense beyond

a reasonable doubt.              JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979).             When performing

an    evidentiary           sufficiency        review,     the   appellate   court may not re-evaluate

the     weight         and credibility of the vidence and substitute its judgment for that

of the jury.

     The petitioner Green consistently has argued he is innocent, the sexual assault

incounter between              Green     and     Dawn     Johnson   was [consentual], Johnson payment

for     sexual intercoarse was to be paid in with "drug's, a controlled substance".




                                                          (7)
     When    disagreement          came between     petitioner Green, and Green decided not to

pay Johnson because of her (Johnson) intent to deceive Green for more drug's then

bargained         for     for    sex, the states witness Dawn Johnson then became upset, and

disapointed,            turned     to wrongful deceptive act's to commit perjury, harm Green

by fabricating a false erroneous sexual assault offense against the defendant

Green       he    did     not commit, with the end result's to cause a wrongful conviction

against the petitioner Green, when the sexual encounter was consentual. REDMOND

v. KINGSTON, 240 F.3d 590 (7th.Cir. 2001).                 On review, the court of Criminal

Appeals will observe conflicting stories by the states witness Dawn Johnson.

(RR5:88-95)., and also observe the inconsistences in the testimony of the states

witness Johnson in her allegation's of a gun, and of identification of petitioner

Green.           The    Court of Criminal Appeals will also review on record the testimony

of    the        states    witness     Johnson, (on record) did not testify that her life was

ever put in danger, or risk of serious bodily injury or death. COLEMAN v. STATE,

145 SW.3d 649, 652 (Tex.Crim.App. 2004}, to support a deadly weapon finding of

use and exhibited. (RR5:88-123).                  This should have been observed that the test

imony of Dawn Johnson falls into the hearsay catagory of: Texas and Federal Rules

of Evidence 803(2), Utterance exceptional rule to hearsay.

     At"no time did Johnson express pain, or in a state of shock from emotional

stress, yes there were sex, at trial Johnson testified comfortable, relaxed with

only a           thought    to     lie and fabricate her erroneous sexual assault complaint.

      The        court     of    Criminal appeals must apply the hearsay exception, the court

of    Criminal           Appeals    when   then   find   that the Court of Appeals erred, on the

sufficiency of review. CLEWIS v. STATE, 922 SW.2d 126 (Tex.Crim.App. 1996), and

reverse his conviction.




                                                     (8)
                                                       ISSUE THREE


      The     Court     of Appeals failed to observe the events alleged as sexual assault
and her identification of the defendant Green was with the intent to deceive the
Court that she did not know the defendant Green, when she knew the defendant

Green personally from prior sexual agreement's in a consentual sex agreement
between the two that turned a drug deal to go bad for payment, was a plain error,
that was obvious. (RR5:92). (Compare: RR5:102).

      The petitioner            Charles A. Green does not argue the issue of having sex with

with        the   .states    witness Dawn Johnson because he did, but the sexual encounter

was     consentual, and the sexual allegations were fabricated, erroneous and false

WITH        THE   INTENT     TO       CAUSE     HARM    TO Green.     Before having consentual sex with

the states witness Dawn Johnson, a agreement was made between the two for Johnson

to     receive      drugs,        a    controlled       substance in return for her payment for sex.

      The     petitioner        Green     informs       the   Court this was not the first consentual

sexual        encounter         with     the     states witness Dawn Johnson for the payment to be

in drug's.             The petitioner Green and Johnson have had consentual sex on other

occasions         for    the      same    paayment       of drugs, a controlled substance, in return

with Dawn Johnson. Prior to having sex, and the sexual assault allegation's,

Johnson       and      Green were         friend's       calling     and dating each other.   This would

have been discovered h^d thgd: this been addressed on cross-examination. Although
addressed         in    issue     two,        when Johnson reneged on the initial agreement of the

sexual       act, the petitioner Green refused to pay Johnson on her demand of drugs.

     Johnson       knew     the       petitioner Green personally, and was aware that as in the

previous sexual encounters with Green they never used condums, therefore, DNA

evidence would be present, freely before their disagreement.                         Johnson used the

evidence of DNA to harm Green.                    In a new trial, the defendant Green can request

for an expert on drugs, an error prior trial counsel had failed to investigate

and do. MILLER v. WA1NWRIGHT, 798 F.2d 426 (11th.Cir. 1986).                         The Court of Crim

inal Appeals must observe the demeanor of false intent in the testimony of the
states witness Dawn Johnson for clear error, deception at trial, to mislead the
court and jury as if she was a victim, but instead a participant accomplish

                                                          (9)
witness as a matter of law. Code of Crim.. Proc. 38.14. see (RR5:88-123).

   The        court        of Criminal Appeals must review the record on its own motion, the

Court of Criminal Appeals will find the truth that Dawn Johnson lied and fabricated

a erroneous sexual assault against the petitioner Green.

   For        all     practical             purposes,     the petitioner Green request that this court

conduct a evidentiary hearing on its own motion, as well as review the records

on its own motion the Court of Criminal Appeals will find true, a sexual inter

course occurred, but the sexual intercourse was consentuai..• OLDEN v.-KENTUCKY,

109 S.Ct. 480 (1988).


                                                          ISSUE FOUR


  The Court of Appeals errored by failing to find the relevant facts, the sexual
incounter           was        consentual.       The Court of Appeals failed to apply the law to the
fact's        the     firearm          allegations        was    insufficient to support a finding of use
and exhibited. "Deadly Weapon" means a firearm, or anything manifestly designed,
made     or     adopted             for the purpose of .i.nflicting death or causing serious bodily
injury.         In        this       case,     the   states witness made no mention that she felt her
life     was        ever       put     in    danger of serious body injury, or death. (RR5:88-104).

  Penal Code §1.07(a)(17)(A).                        In ROBERTSON v. STATE, 163 SW.3d 730, 732 (Tex.Crim.

App.     2005).                Under        the definition in §1.07(a)(17)(A) "an object's physical

characteristics                determine        whether    a     weapon is deadly by design. Moreover, an

object     can       be        a    deadly weapon by 'design' only if it has no obvious purpose
apart from causing death or serious bodily injury.

   At     trial,          the       states witness testified that            that her assailant put a mask

over     her     eyes.             (RK5:9596)    She    prior testified that her assailant never said

he had a gun. (RR5:91)                   The Court of Appeals errored.

       ON RECORD IN THE COURT OF APPEALS OPINION,                                 THE COURT SAID THAT
       JOHNSON TOLD THE POLICE THAT THE APPELLANT HAD A .357.                                   This is
       own [Page 2 of the court of Appeals opinion].
   This         is         a       error,      a plain and obvious error on the record that
fiSieneffected                  the     substanial              rights   of the defendant Charles A.
Geen.      U.S.        v.       OLANO,       507 U.S.      725,     733-34   (1993).



                                                            (10)
  The       court    of    Criminal      Appeals   should exercise its power when this plain

and    obvious       error      has   effected the petioner Green, that has denied him his

right       to   receive     a    fair    trial.      The matter of a gun, a deadly weapon is

, and was a very important matter in this case of Charles A. Geen.

      At    no   time     during      trial, the witness Dawn Johnson, never testified that

her life was              in danger.       And never testified to any supporting fact's to

sustain a sexual assault offense.

      The    evidence      is    insufficient to have found him guilty of sexual assault/

just       as much, the evidence is insufficient to haare found him guilty of using

and exhibiting a deadly weapon. JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979).


                                                   PRAYER


  The petitioner Charles A. Green prays that the Honorable Court of" Criminal
Appeals will reverse his conviction, and order him a new trial.




      September 2, 2015.                                           RESPECTFULLY SUBMITTED



                                                                    CHARLES ANTHONY GREEN

                                                                    #1959504    WYNNE UNIT

                                                                        810    FM 2821

                                                                     HUNTSV1LLE,   TEXAS.

                                                                                   77349.



                                          INMATES DECLARATION

 I, Charles A. Green, Id.#1959504, hereby swear under the penalty of perjury
that the forgoing information is true, and correct.


                                                                   Charles Anthony Green
                                         CERTIFICATE OF SERVICE

  I,       Charles   A.     Green,     hereby certify, that a true and correct copy of the
forgoing information             has been forwarded to the Tarrant County District Attorneys
Office in Tarrant County by U.S. Mail.



                                                                    CHARLES ANTHONY GREEN

                                                    (11)
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                                FORT WORTH


                            NO. 02-14-00426-CR



CHARLES ANTHONY GREEN                                            APPELLANT


                                      V.


THE STATE OF TEXAS                                                     STATE




        FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                        TRIAL COURT NO. 1303703D




                                 OPINION




     A jury convicted Appellant Charles Anthony Green of aggravated sexual

assault with a deadly weapon.    The trial court sentenced him to fifty years'

confinement.   In his sole point, Appellant challenges the sufficiency of the

evidence of the use or exhibition of a deadly weapon. Because the evidence is

sufficient to allow a jury to conclude beyond a reasonable doubt that Appellant
did use and exhibit a deadly weapon, specifically a firearm, in the commission of

the offense, we affirm the trial court's judgment.

Brief Facts


      On February 12, 2004, at approximately 3:00 p.m., Dawn Johnson (a

pseudonym) went to an O'Reilly's Auto Parts store to buy car supplies in

Pantego, Texas. When she left the store, Johnson noticed Appellant sitting at

the edge of the building near her vehicle. His presence made her nervous, so

she put down her bags to get her keys out of her purse. As she found her keys,

Appellant came up behind her and stated that he needed a ride. Johnson felt a

metal object against her mid-back; she believed that the object was a gun.

Johnson told Appellant that he could take her car, but he did not let her go.

Instead, Appellant shoved her through the driver's seat into the passenger seat

of her car. Appellant got into the driver's seat and drove off. As Appellant was

driving, Johnson considered jumping out of the car but decided not to for fear of

being shot.

       While he was driving, Appellant put his ski cap on Johnson, covering her

eyes. He eventually pulled the car over into an alley. He came over to the

passenger side of the car, and Johnson began screaming.            Appellant told

Johnson that he would not hurt her.        But when she continued screaming, he

placed what felt like the barrel of a gun to her head. Johnson told the police that
Appellant had told her that the object was a ".357." Appellant raped Johnson and

then let her leave.
Sufficiency of the Evidence

      Appellant argues that because Johnson saw no firearm and the police

found no firearm, the evidence is insufficient to support the jury's deadly weapon

finding. The standard for reviewing sufficiency of the evidence is whether any

rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt.1       The evidence is examined in the light most
favorable to the jury's verdict.2 This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts."3   When performing an evidentiary sufficiency review, the

appellate court may not re-evaluate the weight and credibility of the evidence and

substitute its judgment for that of the jury.4 The jury determines facts proven and
the weight and credibility to be given to testimony, and it exclusively possesses

the authority to reconcile conflicts.5 The jury may believe all, part, or none of a


      1Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2788-89 (1979);
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert, denied, 511
U.S. 1046(1994).

      2Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.

      zJackson, 443 U.S. at 319, 99 S. Ct. at 2789.

      4lsassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

     5Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000), cert, denied, 532 U.S. 944 (2001).
witness's testimony.6 The appellate court must presume that the jury resolved

any conflicting inferences in favor ofthe verdict and defer to that resolution.7
      In a sufficiency review, "[circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone

can be sufficient to establish guilt."8
      To sustain a deadly weapon finding, the evidence must show that the

object satisfies the definition of the term "deadly weapon," that the deadly

weapon was used during the offense, and that someone other than the

defendant was thereby placed in danger.9 Appellant argues that the evidence is
insufficient to prove that he "used" a deadly weapon because Johnson never saw

his gun and that therefore the evidence sufficed to prove only sexual assault

rather than aggravated sexual assault. The State argues that the evidence is

sufficient to support the deadly weapon finding and therefore the aggravated

sexual assault conviction because of the following:

       •      Johnson unequivocally testified that her encounter with
              Appellant began when she felt Appellant stick a gun in her
              back.




       ^Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       7Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012).

       8Hooperv. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

       gBristerv. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
      •      Johnson was "100% sure" she felt Appellant put the barrel of
             a gun against her head.

      •      Johnson submitted to Appellant because she believed he
             would shoot her if she resisted.

      •      As Appellant prepared to rape Johnson, he asked if she knew
             what kind of gun he was holding against her head and then
             told her it was a .357. [Citations omitted.]

      The State is correct.     Johnson's testimony that she felt a gun barrel

pressed against her and that Appellant told her that it was a .357 is sufficient to

support the jury's deadly weapon finding.10
Conclusion

      We therefore overrule Appellant's sole point on appeal and affirm the trial

court's judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEEANNDAUPHINOT
                                                   JUSTICE


PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

PUBLISH

DELIVERED: June 4, 2015




      10See Woods v. State, 653 S.W.2d 1,4 (Tex. Crim. App. 1982).
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