                                                                                    ACCEPTED
                                                                                01-14-00809-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           4/22/2015 4:14:15 PM
                                                                          CHRISTOPHER PRINE
                                                                                         CLERK

                          No. 01-14-00809-CR
                      IN THE COURT OF APPEALS
                                                          FILED IN
                                                   1st COURT OF APPEALS
              THE FIRST DISTRICT OF TEXAS AT HOUSTON HOUSTON, TEXAS
                                                   4/22/2015 4:14:15 PM
                                                   CHRISTOPHER A. PRINE
                                                           Clerk

                        RODYS A. SANCHEZ
                                Appellant
                                  v.
                       THE STATE OF TEXAS
                                 Appellee



                On Appeal from Cause Number 1408480
                263rd District Court, Harris County, Texas
                 Honorable Jim Wallace, Judge Presiding



                        BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED                       CORY J. ROTH
                                              CORY ROTH LAW OFFICE
                                              4306 YOAKUM BOULEVARD,
                                              SUITE 240

                                              HOUSTON, TEXAS 77006
                                              PHONE: 713-864-3400
                                              FAX: 713-864-3413
                                              COUNSEL FOR APPELLANT
                    IDENTITY OF PARTIES AND COUNSEL
TRIAL PROSECUTOR:                          Ms. Tiffany Dupree
                                           Ms. Jamie Felicia
                                           Assistant District Attorneys
                                           Harris County, Texas
                                           1201 Franklin, 6th Floor
                                           Houston, Texas 77002


DEFENSE COUNSEL AT TRIAL:                  Mr. Stephen Greenlee
                                           2909 Hillcroft, Suite 560
                                           Houston, Texas 77057


PRESIDING JUDGE:                           Hon. Jim Wallace
                                           263rd District Court
                                           Harris County, Texas
                                           1201 Franklin, 15th Floor
                                           Houston, Texas 77002


COUNSEL FOR APPELLANT ON APPEAL:           Cory J. Roth
                                           Cory Roth Law Office
                                           4306 Yoakum Boulevard,
                                           Suite 240
                                           Houston, Texas 77006




                                   2
                                                 TABLE OF CONTENTS




TABLE OF CONTENTS .................................................................................................... 3
INDEX OF AUTHORITIES .............................................................................................. 5
STATEMENT OF THE CASE .......................................................................................... 6
ISSUES PRESENTED ......................................................................................................... 7
   I. Appellant was denied his constitutional due process right to assistance of counsel
   because Mr. Greenlee failed to review the State’s notice the Complainant made
   potentially false allegations of sexual abuse against other people that were no-billed;
   failed to request a continuance at three vital junctures; failed to put a vital bench
   conference on the record; failed to object to the jury charge; and made a punishment
   argument that mirrored the State’s. .................................................................................. 7
   II. Trial court reversibly erred by denying Appellant’s request for a jury instruction
   on the lessor included offense of indecency with a child. Indecency with a child is a
   lesser included offense of aggravated sexual assault of a child, and the court’s refusal
   to grant Appellant’s request for the instruction denied Appellant constitutional right
   to fair and impartial trial. ................................................................................................... 7
STATEMENT OF FACTS .................................................................................................. 7
SUMMARY OF THE ARGUMENT ............................................................................... 10
ARGUMENT ....................................................................................................................... 11
ISSUE ONE ......................................................................................................................... 11
   Appellant was denied his constitutional due process right to effective assistance of
   counsel because Mr. Greenlee failed to review the notice provided by the State that
   the complainant made allegations of sexual abuse that were no-billed; failed to request
   a continuance at three vital junctures; failed to put a vital bench conference on the
   record; failed to object to the jury charge; and made a punishment argument that
   mirrored the State’s. ......................................................................................................... 11
   A. Standard of Review .................................................................................................... 11
   B. Trial Counsel Was Ineffective .................................................................................. 13




                                                                  3
       1. Trial counsel’s failure to review the State’s notice that the Complainant made
       potentially false allegations of sexual abuse in Montgomery County rendered him
       ineffective....................................................................................................................... 15
       2. Trial counsel’s failure to request a continuance to determine whether
       Complainant’s allegations of sexual assault in Montgomery County were
       unsubstantiated rendered him ineffective. ................................................................. 16
       3. Trial counsel’s argument at punishment rendered him ineffective. ................. 24
       4. Counsel was ineffective for failing to object to expert testimony at sentencing
       to State’s line of questioning about the best treatment for sex offenders, and
       expert’s statement that violated Appellant’s right to not testify, and failing to
       object to the jury charge............................................................................................... 28
ISSUE TWO ......................................................................................................................... 32
   THE TRIAL COURT ERRED IN REFUSING TO INCLUDE A JURY
   INSTRUCTION FOR THE LESSER INCLUDED OFFENSE OF INCEDENCY
   WITH A CHILD .............................................................................................................. 32
       A. Indecency with a child is a lesser included offense of aggravated sexual
       assault of a child. ........................................................................................................... 33
       B. There is a question as to whether Appellant penetrated the Complainant’s
       vagina, thus, an indecency with a child instruction would have been proper. ...... 36
       C. Refusing to give the jury instruction on indecency with a child harmed
       appellant, requiring that his conviction be reversed. ................................................ 40
CONCLUSION ................................................................................................................... 41
PRAYER ............................................................................................................................... 43
CERTIFICATE OF SERVICE ......................................................................................... 43
CERTIFICATE OF COMPLIANCE .............................................................................. 44




                                                                     4
                                                  INDEX OF AUTHORITIES
Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim App. 1984) ................................................................ 40
Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005) .................................................................. 12
Banda v. State, 890 S.E.2d 42 (Tex. Crim. App. 1994) ...................................................................... 39
Barfield v. State, No. 14-13-0518-CR, (Tex. App.—Houston [14th Dist.] 2015) ........................... 16, 23
Bingall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994)..................................................................... 39
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002)........................................................................ 12
Bottenfield v. State, 77 S.W.3d 349 (Tex. App.—Fort Worth) ............................................................ 34
Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App. 1993) .................................................................... 28
Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987) ........................................................... 34
Davis v. Alaska, 415 U.S. 308 (1974) ............................................................................................... 18
DeLeon v. State, 322 S.W.3d 375 (Tex. App-Houston [14th Dist.] 2010)............................................ 28
Farrakhan v. State, 263 S.W.3d 124 (Tex. App.—Houston [1st Dist.] 2006) ...................................... 34
Giglio v. United States, 405 U.S. 150 (1972). ...................................................................................... 14
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ...................................................................... 33
Heiselbetz v. State, 906 S.W.2d 500 (1995)................................................................................... 16, 23
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ............................................................... 11
Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010) .................................................................. 31
Hughes v. State, 850 S.W.2d 260 (Tex. Crim. App—Corpus Christi (1993) ....................................... 17
Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996).................................................................. 16
Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) ..................................................................... 39
Lilly v. Virginia, 527 U.S. 116 (1999) ............................................................................................... 21
Lofton v. State, 45 S.W.2d 649 (Tex. Crim. App. 2001) ..................................................................... 35
Mendez v. State, 56 S.W.3d 880 (Tex. App.—Austin 2001) ............................................................... 21
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ................................................................ 40, 41
O’Brien v. State, 89 S.W.3d 753 (Tex. App.—Houston [1st Dist.] 2002) ............................................ 39
Pointer v. Texas, 380 U.S. 400 (1965) ................................................................................................ 21
Portier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) ..................................................................... 30
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) ................................................................. 31, 41
Ross v. State, 861 S.W.2d 870 (Tex. Crim. App. 1992 ....................................................................... 39
Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) .................................................... 33, 37, 39
Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) .................................................................. 33
Strickland v. Washington, 466 U.S. 668 (1984).................................................................................... 11
Tex. R. Evid. 44.2(b) ...................................................................................................................... 30
Thomas v. State, 669 S.W.2d 420, 423 ............................................................................................... 17
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) ................................................................ 41

                                                                      5
Statutes
Tex. Code Crim. Proc. 37.09(1)(2) .................................................................................................. 37
Tex. Code Crim. Proc. art. 29.03 .................................................................................................... 17
Tex. Code Crim. Proc. art. 29.13 .............................................................................................. 17, 20
Tex. Penal Code § 22.021 ............................................................................................................... 36
Tex. Penal Code § 22.11 ................................................................................................................. 36
Tex. Penal Code §22.011 ................................................................................................................ 36
Rules
Texas Rule of Appellate Procedure 44.2 ......................................................................................... 31
Constitutional Provisions
Tex. Const. art. 1, § 10 ................................................................................................................... 21
Tex. Const. art. I § 10 ..................................................................................................................... 31
U.S. Const. amend. 5 ...................................................................................................................... 31
U.S. Const. amend. 6 ................................................................................................................ 18, 21
Rules of Evidence


Tex. R. Evid. 412 ........................................................................................................................... 15




                                           STATEMENT OF THE CASE
           A Harris County Grand Jury indicted Rodys A. Sanchez of Aggravated Sexual

Assault of a Child in September 6, 2013.1 Mr. Sanchez was found guilty in the 263rd

District Court after a two day trial on September 16, 2014.2                                            The jury sentenced Mr.

Sanchez to life in prison.3 Mr. Sanchez filed timely notice of appeal on September 17,

2014. C.R. at 64.




1
  C.R. at 5.
2
  C.R. at 51.
3
  C.R. at 60.
                                                                       6
                                 ISSUES PRESENTED
    I.      Appellant was denied his constitutional due process right to assistance
            of counsel because Mr. Greenlee failed to review the State’s notice the
            Complainant made potentially false allegations of sexual abuse against
            other people that were no-billed; failed to request a continuance at
            three vital junctures; failed to put a vital bench conference on the
            record; failed to object to the jury charge; and made a punishment
            argument that mirrored the State’s.

    II.     Trial court reversibly erred by denying Appellant’s request for a jury
            instruction on the lessor included offense of indecency with a child.
            Indecency with a child is a lesser included offense of aggravated sexual
            assault of a child, and the court’s refusal to grant Appellant’s request
            for the instruction denied Appellant constitutional right to fair and
            impartial trial.

                               STATEMENT OF FACTS
          Michelle Weaver Velasco is the mother of three daughters, D.W., the

Complainant, S.W. and P.W.4 Ms. Velasco began dating the Mr. Sanchez shortly after

meeting him in the summer of 2011.5 Ms. Velasco introduced Mr. Sanchez to her

children two months later.6 Mr. Sanchez spent time with Ms. Velasco’s children on

several occasions before the sexual assault allegedly occurred.7




4
  V R.R. at 21.
5
  V. R.R. at 22.
6
  V. R.R. at 28.
7
  V R.R. at 28-30.
                                             7
        On November 5, 2011, Mr. Sanchez and Ms. Velasco planned to take Ms.

Velasco’s children to Main Event Entertainment Center for an afternoon of bowling.8

First, however, Ms. Velasco wanted D.W. to have some bonding time with Mr.

Sanchez.9 Ms. Weaver drove to a Woodlands area Taqueria Arandas in the late morning

to drop D.W. off with Mr. Sanchez.10 D.W., Ms. Velasco, and Mr. Sanchez had cell

phones.11

        Mr. Sanchez took D.W. to a nail salon about twenty minutes away from Taqaria

Arandas.12 Ms. Velasco knew where her daughter was.13 Mr. Sanchez and D.W. spent

around three hours at the salon, during which time D.W. got acrylic nails applied and

painted.14 D.W. was in contact with her mother until her phone died.15 D.W. was tired

from not sleeping the previous night, so Mr. Sanchez took her to his apartment for a

nap.16 Mr. Sanchez drank two beers on the way home.17 D.W. claimed that Mr. Sanchez

then snuck her into his room, disrobed, massaged, kissed, licked her nipples, and

penetrated her vagina with his finger in his room.18



8
  V R.R. at 31.
9
  V R.R. at 33.
10
   . V R.R. at 33
11
   VI R.R. at 21.
12
   VI R.R. at 22.
13
   Id.
14
   VI R.R. at 22-23.
15
   V R.R. 35.
16
   VI R.R. at 24.
17
   VI R.R. at 25-26.
18
   VI R.R. at 37, 40.
                                           8
       D.W. texted her mother when Mr. Sanchez was driving her to Main Event.19 Mr.

Sanchez dropped D.W. off at Main Event, and she went inside.20 Ms. Velasco went to

speak to Mr. Sanchez in his car.21 She noticed that he appeared intoxicated and made

a bizarre statement that D.W. is “not ready.”22 Ms. Velasco then went inside the

bowling alley to ask what Mr. Sanchez meant by his statement.23 D.W. made her outcry

at this point.24

       Ms. Velasco then took D.W. the hospital she worked at for a sexual assault

examination.25 D.W. was examined by SANE nurse Susan Spujt.26 Nurse Spujt took

D.W.’s history and conducted a rape kit.27 Nurse Spujt noted that D.W. was calm,

cooperative, and did not claim to be in any pain or discomfort even though she claimed

Mr. Sanchez penetrated her vagina.28 Nurse Spujt swabbed the areas of D.W.s body

where D.W. stated that Mr. Sanchez touched her, namely the mouth, nipples, and

vagina.29 Nurse Spujt also swabbed D.W.’s anus.30



19
   VI R.R. at 47.
20
   VI R.R. at 47.
21
   Id.
22
   V R.R. at 37-38.
23
   . VI R.R. at 48
24
   . Id
25
   V R.R. at 42.
26
   V R.R. at 78.
27
   V R.R. at 79.
28
   Id.
29
   V R.R. at 90.
30
   Id.


                                          9
         The swabs were sent to Harris County Institute of Forensic Sciences, where

Robin Freeman worked.31 Ms. Freeman was the DNA interpretation manager.32 Ms.

Freeman testified that a DNA profile matching Mr. Sanchez was present on D.W.’s

nipples and anus, although his DNA was not present on or in her vagina.33 Nurse Spujt

testified that Mr. Sanchez’s DNA should have been in D.W.’s vagina if he actually

penetrated it under the circumstances that existed.34

         Mr. Sanchez did not present any evidence in his case in chief at both the guilt

and punishment phases.35

                          SUMMARY OF THE ARGUMENT
         In his first point of error, Appellant asserts that he received ineffective assistance

of counsel from his trial lawyer, Stephen Greenlee. The record demonstrates that Mr.

Greenlee‘s performance fell below any objective standard of reasonableness, his

deficient performance prejudiced the Appellant, and but for his unprofessional

performance there is a reasonable probability the result of the proceeding would have

been different. Mr. Greenlee’s prejudicial deficiencies include failing to motion for a

continuance when he learned the complainant made allegations of sexual abuse that


31
   VII R.R. at 77.
32
   Id.
33
   VII R.R. at 96, 100.
34
   V R.R. at 111.
35
     VI R.R. at 129, VII R.R. at 151.



                                               10
were no-billed, failing to review the notice given to him about those allegations, and

that his sentencing argument that mirrored a traditional prosecutorial argument.

       In his second point of error, Appellant asserts that the trial court reversibly erred

by excluding a jury charge for the lesser included offense of indecency with a child.

Evidence was presented at trial that supported the Appellant’s contention that he did

not penetrate the complainant’s vagina, and that his inappropriate conduct was

committed with the intent to arouse or satisfy sexual desires. The trial court’s denial of

his request for a jury instruction on indecency with a child denied Appellant his

constitutional right to a fair and impartial trial.

                                       ARGUMENT
                                       ISSUE ONE
       APPELLANT WAS DENIED HIS CONSTITUTIONAL DUE PROCESS RIGHT
       TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE MR. GREENLEE
       FAILED TO REVIEW THE NOTICE PROVIDED BY THE STATE THAT THE
       COMPLAINANT MADE ALLEGATIONS OF SEXUAL ABUSE THAT WERE
       NO-BILLED; FAILED TO REQUEST A CONTINUANCE AT THREE VITAL
       JUNCTURES; FAILED TO PUT A VITAL BENCH CONFERENCE ON THE
       RECORD; FAILED TO OBJECT TO THE JURY CHARGE; AND MADE A
       PUNISHMENT ARGUMENT THAT MIRRORED THE STATE’S.

   A. STANDARD OF REVIEW
       The Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.

App. 1986), adopted the two-pronged test articulated in Strickland v. Washington, 466

U.S. 668, 694 (1984) to determine whether counsel has been constitutionally ineffective.

To have a conviction reversed on the grounds of ineffective assistance of counsel an


                                              11
appellant must show that (1) counsel’s representation fell below an objective standard

of reasonableness, and (2) the deficient performance prejudiced the appellant.

Strickland, U.S. 455 at 687. Appellate courts’ review of counsel’s performance must be

highly deferential. Id. “There is a strong presumption that counsel’s conduct falls

within a wide range of reasonable professional assistance, and the defendant must

overcome the presumption. We determine the reasonableness of counsel’s challenged

conduct in context, and view it as of the time of counsel’s conduct.” Andrews v. State,

159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citations omitted).

       The record on appeal in an almost all cases inadequate to show that counsel’s

conduct fell below an objectively reasonable standard of performance, and that the

better course is to pursue the claim in habeas proceedings. Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). But when no reasonable trail strategy could justify

counsel’s conduct, counsel’s conduct falls below an objective standard of

reasonableness as a matter of law, regardless of whether the record adequately reflects

the trial counsel’s subjective reasoning for acting as she did. Strickland, supra, at 690.

       We do not require that the appellant show that there would have been a
       different result if counsel’s performance had not been deficient. The
       defendant must show only that “there is a reasonable probability that, but
       for counsel’s unprofessional errors, the result of the proceeding would
       have been different. A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.




                                            12
Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) citing Strickland,
supra, at 694.36
     B. TRIAL COUNSEL WAS INEFFECTIVE
                                   RELEVANT FACTS
        The State became aware sometime during the week before trial that the

Complainant made allegations of rape against three boys in Montgomery County.37 Ms.

Dupree, for the State, claimed that although she did not know why, the allegations were

dismissed or no-billed.38 Ms. Felicia, for the State, stepped in to say the allegations were

no-billed.39 It was Ms. Felicia’s belief that the charges were no-billed because the

Complainant had almost zero recollection of the abuse.40 Moreover, the Complainant’s

mother received a letter from the Montgomery County District Attorney’s Office

stating that there was a lack of evidence.41

        The State filed a Motion in Limine to prevent Appellant from cross-examining

the Complainant about the Montgomery County allegations.42 Mr. Greenlee told the

court that he did not know about the allegations, or their no-bill, prior to the pre-trial

conference.43 Ms. Felicia alleged Mr. Greenlee had notice of the potentially false




37
   IV R.R. at 6-7.
38
   IV R.R. at 6.
39
   IV R.R. at 7.
40
   Id.
41
   IV R.R. at 7-8.
42
   C.R. at 17.
43
   IV R.R. at 9.
                                               13
allegations because she sent the motion in limine to him on Friday.44               45
                                                                                         The record

clearly reflects that Mr. Greenlee did not review the State’s notice of the potentially

unsubstantiated allegation of sexual abuse.46 Moreover, Mr. Greenlee did not file a

motion for continuance after he received this untimely and insufficient notice of this

potential Brady evidence.47 48

       The trial court initially ruled that Appellant could question the Complainant on

this matter because it is relevant to her character for truthfulness.49 The State re-urged

her motion on the second day of trial at during a bench conference before the day’s

examinations began.50        The court changed its ruling based on the cases presented at

the conference.51      The court changed its rulings because Mr. Greenlee did not

substantiate the Montgomery County allegations as false.52 Mr. Greenlee failed to have

this conference placed on the reporter’s record.53




44
   IV R.R. at 9-10.
45
   Appellant requests the court to take judicial notice that the pretrial hearing occurred on Monday,
September 15, 2014. “Last Friday,” as referred to be Ms. Felicia would have been Friday, September
12, 2014, one business day before trial.
46
   Id.
47
   IV R.R. at 6-10.
48
   The Montgomery County allegations were potential Brady evidence because, as the trial court
noted, they could be used to impeach the Complainant’s character for truthfulness. Giglio v. United
States, 405 U.S. 150, 154-55 (1972).
49
   IV R.R. at 10.
50
   VI R.R. at 6.
51
   Id.
52
   Id.
53
   Id.
                                                 14
                1. Trial counsel’s failure to review the State’s notice that the
                   Complainant made potentially false allegations of sexual abuse
                   in Montgomery County rendered him ineffective.
        The record reflects that Mr. Greenlee failed to review the State’s Motion in

Limine that was sent to him day before trial.54 55 The Motion contained notice that the

Complainant previously made allegations in Montgomery County that three boys raped

her.56 Mr. Greenlee explicitly stated he knew nothing about the allegations.57

        Mr. Greenlee’s failure to read the Motion in Limine fell below an objective

standard of reasonableness. The only reasonably objective trial tactic upon receiving

an opposing party’s motion in limine is to read it. If a lawyer does not read the opposing

party’s motion in limine, he cannot be prepared to competently represent his client at

the pre-trial conference on the motion. If a lawyer does not read the opposing party’s

motion in limine he cannot prepare an argument against the motion, nor can he know

that he needs to file a motion for continuance, as was necessary in this case. There was

no reasonable trial strategy for failing to read the State’s Motion in Limine.

        Mr. Greenlee’s deficient performance prejudiced Appellant.                         But for Mr.

Greenlee’s deficient performance, he could have researched the law to argue at the pre-

trial conference, made an attempt to substantiate the allegations as false, or, in the

alternative, file a motion for continuance for leave to investigate the potential Brady

54
   IV R.R. at 6-10.
55
   To be clear, Appellant is not alleging ineffective assistance of counsel for failure to investigate.
56
   IV R.R. at 7.
57
  IV R.R. at 9.
                                                    15
evidence that is false allegations of sexual abuse. Had Mr. Greenlee acted as an

objectively reasonable lawyer, there is a reasonable probability that trial would have

been continued, and he would have been found not guilty of aggravated sexual assault

of a child.

              2. Trial counsel’s failure to request a continuance to determine
                 whether Complainant’s allegations of sexual assault in
                 Montgomery County were unsubstantiated rendered him
                 ineffective.

                     a. Trial counsel’s performance fell below an objective
                        standard of reasonableness.

                            i. Counsel’s Failure To Motion For Continuance
                               Was Unreasonable
       An objectively reasonable lawyer would file a motion for continuance upon

learning about Brady evidence the day before trial. Texas courts do not hesitate to

declare abuse of discretion where denial of a continuance has resulted in prejudice as a

result of representation by unprepared counsel. Heiselbetz v. State, 906 S.W.2d 500, 511

(1995). Prejudice has been found to include unfair surprise, an inability to effectively

cross-examine the State’s witnesses, and the inability to elicit crucial testimony. Barfield

v. State, No. 14-13-0518-CR, (Tex. App.—Houston [14th Dist.] April 2, 2015), (citing

Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)).

       A motion for continuance may be granted pre-trial if it is in writing and shows

sufficient cause. Tex. Code Crim. Proc. art. 29.03. A motion for continuance may be


                                            16
granted during trial when it is made to appear to the satisfaction of the court that by

some unexpected occurrence since trial began, which no reasonable diligence could

have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Tex. Code Crim. Proc. art. 29.13. While counsel may lodge an oral motion for

continuance, it must be in writing to preserve error.

       Mr. Greenlee did not have the opportunity to competently prepared for trial by

virtue of the untimely notice of the Montgomery County allegations. The tardy

disclosure constituted unfair surprise. The only way Mr. Greenlee could have been

prepared to represent Appellant at trial, in light of the newly disclosed allegations, was

by requesting a continuance to investigate the allegations. Requesting a continuance to

investigate the allegations was essential because Appellant could only cross-examine the

Complainant about the allegations if they were substantiated as false. Hughes v. State,

850 S.W.2d 260, 262-63 (Tex. Crim. App—Corpus Christi (1993) (citing Thomas v. State,

669 S.W.2d 420, 423).        A continuance and investigation would be required to

substantiate the allegations as false.

       Mr. Greenlee could have shown sufficient cause by alleging in his motion

hypothetical motion that the notice of the allegations was untimely and unfair surprise,

and that the allegations may have been Brady material because, if false, they could have

been used to impeach the Complainant’s character for truthfulness. Mr. Greenlee had

several opportunities to act as an objectively reasonable lawyer by filing a motion for

                                           17
continuance. Because Mr. Greenlee did not request a continuance, Appellant was

denied his constitutional right to fully cross-examine his accuser by his own counsel.

Thomas, 699 S.W.2d at 423 (1984)(citing Davis v. Alaska, 415 U.S. 308, 318 (1974), U.S.

Const. amend. 6.

        Mr. Greenlee’s first opportunity to file a motion for continuance was when he

received notice of the Montgomery County allegations the day before trial. However,

because he failed to read the Motion in Limine, it was impossible for him to file a

motion for continuance at the most obvious juncture.

        Mr. Greenlee’s second opportunity to act as an objectively reasonably lawyer and

file a motion for continuance was at the pretrial conference when the Motion in Limine

about the allegations was discussed. The State’s stance was that the allegations were

admissible under the rape shield statute.58 Tex. R. Evid. 412. The trial court’s stance

was that the allegations were relevant to the Complainant’s character for truthfulness.59

Mr. Greenlee did not even have a stance, other than accepting the court’s argument,

which serves to support what the record says elsewhere: Mr. Greenlee did not read the

State’s Motion in Limine.60 A reasonable lawyer would have requested a continuance

as soon as he learned about the no-billed Montgomery County allegations at the hearing.

Mr. Greenlee’s failure to do so was deficient.


58
   IV R.R. at 7-8
59
   IV R.R. 6-10.
60
   Id.
                                           18
          Mr. Greenlee’s third opportunity to act as a reasonable attorney and file a motion

for continuance was moments before testimony resumed on the second day of trial,

when the court entertained the State’s objection to Appellant cross examining the

Complainant about the Montgomery County allegations.61 Tex. Code Crim. Proc. art.

29.13.       Although the trial court invited the State to lodge her objection at the

appropriate time during the pre-trial conference, it could not be expected that the judge

would change his ruling because of his adamant argument at the pre-trial conference

that Mr. Greenlee was entitled to examine the complainant about the allegations

because they could be used to impeach her character for truthfulness.62 Mr. Greenlee,

yet again, failed to act as an objectively reasonable attorney.

          Finally, Mr. Greenlee was ineffective for failing get the bench conference prior

to testimony on the second day of trial on the record.

                              ii. An aggregation of Mr. Greenlee’s conduct
                                  demonstrates his performance was deficient.
          Mr. Greenlee’s failure to file a motion for continuance after the State made an

untimely disclosure of potential Brady evidence fell below any objective standard of

reasonableness. First, a reasonable lawyer would have looked at and read the Motion

in Limine. Second, a reasonable lawyer would acknowledge that he had to file a motion

for continuance to do at least some cursory investigation into the Montgomery County


61
     VI R.R. at 6.
62
     VI R.R. at 6-10.
                                              19
allegations to determine if they were unsubstantiated. The no-bill demonstrates that

there was at most no probable cause to prosecute the allegations, which is not far off

from being false. Third, Mr. Greenlee’s conduct was unreasonable at the pre-trial

conference for failing to motion for a continuance. Forth, he was again deficient for

failing to request a continuance when the court changed its ruling on the State’s Motion

in Limine. There is simply no reasonable trial tactic for why an attorney would not file

a motion for continuance when such vital and potentially exculpatory evidence came to

light immediately before trial.

       Mr. Greenlee’s deficient performance prejudiced the Appellant because he was

not able to investigate the allegations, or use them to impeach the Complainant as

allowed under Giglio and Brady. Impeachment evidence of this nature would have

served a vital function, and there is a reasonable probability the result at trial would

have been different, because there was no evidence other than the Complainant’s own

words to support her claim that the Appellant penetrated her vagina. It follows that

without requesting a continuance, Appellant had a significantly lower chance of getting

an acquittal.

                     b. Trial Counsel’s Deficient Performance Prejudiced the
                        Defendant
       Mr. Greenlee’s deficient performance prejudiced the Appellant, and there is a

reasonable probability that but for his deficient performance the result at trial would

have been different.     Mr. Greenlee’s performance denied the Appellant of his

                                          20
constitutional due process rights to counsel and to confront his accuser. U.S. Const.

amend. 6. Tex. Const. art. 1, § 10.

                             i. Complainant’s character for truthfulness was at
                                issue.
         Cross examination is the most potent weapon in a defense attorney’s arsenal

because it is the best way to expose the truth. Pointer v. Texas, 380 U.S. 400, 403

(1965)(holding a criminal defendant’s right to confront a witness is a fundamental right

under the Fourteenth amendment), Mendez v. State, 56 S.W.3d 880, 893 (Tex. App.—

Austin 2001)(holding cross-examination is the “greatest legal engine ever invented for

the discovery of truth”); see Lilly v. Virginia, 527 U.S. 116 (1999).         Here, the

complainant’s character for truthfulness was under the microscope, yet Mr. Greenlee’s

deficient performance meant the Appellant was deprived of the most powerful

magnifying glass at the most critical moment of trial—cross-examination of the

complainant. There were several facts that called into doubt the Complainant’s

character for truthfulness, and nothing would have shed light on the matter like a cross-

examination of the Complainant regarding her previous false allegations of sexual

abuse.

                            ii. The Complainant’s Character For Truthfulness
                                Was At Issue For Several Reasons
         The Complainant’s character for truthfulness was at issue for several reasons.

First, the Complainant claimed that the Appellant inserted his finger into her vagina,



                                           21
and that it was the first time anything had been inserted into her vagina.63 Yet, curiously,

the Complainant did not report any pain or discomfort to Nurse Spujt, as one might

expect under the circumstances. 64 Nurse Spujt would have noted in her record if the

Complainant had experienced pain or discomfort.65

        Second, the Complainant directly contradicted Nurse Spujt on the issue of pain

while testifying at trial. The Complainant testified that she told Nurse Spujt that she

felt pain when the Appellant inserted his finger in her vagina.66 Nurse Spujt, however,

did not record any allegations by the Complainant that she felt pain or discomfort when

the Appellant allegedly inserted his finger, or at the examination.67

        Third, Nurse Spujt did not detect any injuries to the complainant’s vagina.68

While vaginal injuries do not necessarily result from penetration, they are probative.

        Fourth, Nurse Spujt testified that she would have expected to find the

Appellant’s DNA in the Complainant’s vagina under the circumstances as the

complainant alleged, and the objective scientific evidence supported.69 Nurse Spujt

testified she would have expected to find DNA in the Complainant’s vagina in this case

because (1) DNA was present everywhere else the Complainant alleged the Appellant


63
   VI R.R. at 40-41.
64
   Id.
65
   V R.R. at 102, IX R.R. at State’s Exhibit 6.
66
   VI R.R. at 70.
67
   V R.R. at 102, IX R.R. at State’s Exhibit 6.
68
   V R.R. at 107.
69
   V R.R. at 110-11, IX R.R. at State’s Exhibit 6.
                                                     22
touched her, (2) there was no vaginal discharge that could have removed his DNA from

the vaginal cavity, (3) the Complainant did not shower, (4) the Complainant was not

wearing a tampon, (5) a condom was not used, (6) the Complainant was not

menstruating, (7) the complainant did not douche, (8) the Complainant did not wipe or

wash herself, (9) the Complainant did not urinate, (10) the Complainant did not

defecate, and (11) the Complainant did not change her clothes.70

          The aforementioned discrepancies, inconsistent statements, and the lack of the

Appellant’s DNA in the Complainant’s vagina all-the-more demonstrates how essential

it was to request a continuance in order to determine why the Montgomery County

allegations were no-billed.       Mr. Greenlee’s deficient performance prejudiced the

appellant because he was unable to use the allegations to conduct a potentially

reasonable doubt creating cross-examination of the Complainant’s character for

truthfulness.      Appellant is confident that had Mr. Greenlee filed a motion for

continuance that the court denied, this Honorable Court would have found reversible

error under the circumstances because unfair surprise, an inability to effectively cross-

examine the Complainant, and the inability to elicit crucial testimony all existed.

Heiselbetz v. State, 906 S.W.2d 500, 511 (1995); Barfield v. State, No. 14-13-0518-CR, (Tex.

App.—Houston [14th Dist.] April 2, 2015).




70
     V R.R. at 110-11, IX R.R. at State’s Exhibit 6.
                                              23
      But for Mr. Greenlee’s deficient performance, there is a reasonable probability

that the jury would have judged the complainant to be dishonest and not believed there

was penetration because of her inconsistent statements, lack of DNA, and prior false

allegations and abuse. If the jury did not believe there was penetration, it would have

found the Appellant not guilty of aggravated sexual assault of a child.

             3. Trial counsel’s argument at punishment rendered him
                ineffective.
      Mr. Greenlee’s argument at the punishment phase of trial not only failed to

advocate for Appellant, but was deleterious to Appellant’s cause and aided the State.

His conduct at sentencing did not fall within the wide range of reasonable assistance

permissible under the Constitution, and his deficient conduct harmed the Appellant.

Moreover, there is a reasonable probability that but for his deficient conduct, the

Appellant would not have been sentenced to life imprisonment.

                           i. Trial counsel’s representation fell below an
                              objective standard of reasonableness.
      The record reflects that Mr. Greenlee was performance can best be characterized

as part prosecutor, part law professor, and, in lesser part, part defense attorney. For

example, Mr. Greenlee told the jury to consider the “innocent” “victim”:

      The second thing you’re going to consider is [D.W.], and you should.
      Because here’s a young lady, 13 years old and innocent. Children are
      innocent. It’s just that simple. And she did not deserve what happened
      to her. She did not ask for what happened to her. She was victimized.
      And you should, and I would expect you to because certainly if I were in your
      position, I would do. You’re going to consider her. You should. That’s part

                                           24
       of the process of punishment, what you know about the victim in the case
       and your concerns about her. [Sic]71
       Mr. Greenlee also pontificated72 on the purpose of punishment in a manner that

a defendant would expect to hear from the State, but never from his counsel. For

example, Mr. Greenlee lectured on retribution:

       And when you mete out that punishment you’re going to do, I think, five
       things. One, you’re going to punish Rodys Sanchez. And for the crime
       which you found him guilty, the short answer is he should be punished… you’re
       going to provide some level of retribution in order to do justice to D.W.
       and certainly to her family.73
       There is no reasonable trial tactic for informing the jury that they will be

providing retribution for the child victim and her family, or inserting his own opinion

that his own client should be punished. Mr. Greenlee stole the aforementioned passage

from the State’s mouth:


       And you get to, just like Mr. Greenlee said, look at a lot of things. And one
       of the first things that you get to look at when you are thinking about what
       to do with him [Appellant] is D.W. and that’s absolutely right… And so, when
       you’re looking at what to do, you’re going to look at D.W.’s case and
       everything you know about her.74 75
       Mr. Greenlee also lectured on deterrence:

       The third thing your punishment level will do is clearly send a message to
       the citizens of Harris County that if you ever do this type of conduct, we
       think it’s serious and they’re going to punish it accordingly and send that

71
   VIII R.R. at 6-7.
72
   Pontificate: To speak or express your opinion about something in a way that shows you think you
are always right. Merriam-Webster Dictionary, www.mirrian-webster.com/dictionary/pontificate
73
   XIII R.R. at 10.
74
   VIII R.R. at 15, 22.
75
   Excerpt from State’s closing argument at punishment.
                                                25
          message…. Fourth, you’re going to clearly, at least, deter Rodys Sanchez.
          And you may deter other people who may feel that it is okay to prey on
          children. Because it is not okay to prey on anybody, certainly not the most
          innocent of us, and that’s children.76
          There is no reasonable trial tactic for a defense lawyer to inform the jury that

they will be sending a clear message of deterrence. The only message behind this

argument is that Mr. Greenlee thinks this is a serious crime and that his client should

be punished severely so as to deter the Appellant and other would-be child molesters.

Mr. Greenlee again inserted his objectionable opinions, in addition to using language

not even the prosecutor used, such as, “prey” on the “most innocent among us.”77


This, once again, is the type of argument typically reserved for a prosecutor:

          And you know what, not only do you need to protect young girls, you
          need to protect yourselves.78 79
          Mr. Greenlee also suggested he felt the Appellant should be punished

severely:

          …We are going to punish you for what you did and because you deserved
          to be punished and punished severely.80



76
   VIII R.R. at 10.
77
   Mr. Greenlee described Appellant as a person who preys on innocent children three times, while
the State did not use that sort of description once.
78
   VIII R.R. at 22.
79
   Excerpt from State’s closing argument at punishment.
80
     VIII R.R. at 11.



                                                26
      Mr. Greenlee’s performance fell below an objective standard of reasonableness.

There is no reasonable trial tactic that could justify a defense lawyer making the type of

arguments that are typically made by the State. While Mr. Greenlee did make a scant

argument for rehabilitation, any advocacy for the Appellant was significantly

outweighed by Mr. Greenlee’s persistent reminders that the Appellant needs to be

punished severely in order to provide justice for the Complainant and her family, deter

the Appellant and others from preying on innocent children, and to provide retribution

for his transgressions. Mr. Greenlee’s conduct does not fall within the wide range of

reasonable professional assistance.


                           ii. Trial counsel’s deficient performance prejudiced
                               the Appellant.
      Mr. Greenlee’s deficient performance prejudiced the Appellant. While it is

difficult to know what sentence the jury would have imposed had Mr. Greenlee

advocated for his client in an objectively reasonable manner, there is a reasonable

probability that but for his deficient performance, the jury would not have imposed a

life sentence on the Appellant.


      The jury would have expected Mr. Greenlee to give a reason why his client

should be spared the maximum sentence, yet he did not. When defense counsel fails

to find any reason for leniency, to advocate any reason for leniency, and to urge

leniency, a jury can have no reason to be lenient. When defense counsel proclaims in


                                           27
so many words, as Mr. Greenlee did, that his client preys on innocent children and that

he should be punished severely to satisfy the jurisprudential goals of justice for the

victim, retribution, and deterrence, he prejudices his client to the point that his deficient

performance undermines confidence in the outcome.


              4. Counsel was ineffective for failing to object to expert testimony
                 at sentencing to State’s line of questioning about the best
                 treatment for sex offenders, and expert’s statement that violated
                 Appellant’s right to not testify, and failing to object to the jury
                 charge.

                     1. Counsel was ineffective for failing to object to State’s line
                        of questions about the best treatment for sex offenders.
       Expert testimony is admissible if it assists the jury in intelligently determining an

issue but does not decide the issue for the jury. DeLeon v. State, 322 S.W.3d 375 (Tex.

App-Houston [14th Dist.] 2010), See Duckett v. State, 797 S.W.2d 906, 914

(Tex.Crim.App.1990), disapproved on other grounds. Cohn v. State, 849 S.W.2d 817,

819 (Tex.Crim.App.1993); Drake v. State, 123 S.W.3d 596, 606 (Tex.App.-Houston

[14th Dist.] 2003, pet. ref'd). A defendant must establish that the witness’s statement

was inadmissible, and that the trial court would have committed harmful error by

overruling an objection. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.2002), Alexander

v. State, 282 S.W.3d 701, 705 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd).




                                             28
        The State called Dr. Danielle Madera to testify at sentencing.81 Dr. Madera is a

child psychologist from the Children’s Assessment Center.82 She was called, in part, to

testify about punishment for sex offenders.83 Dr. Madera testified that the “only sure

way” to make sure a sex offender will not reoffend is to “lock them up in prison.”84

Mr. Greenlee failed to object to this highly prejudicial and improper opinion.           Her

statement was inadmissible because it invades the province of the jury.


        Here, the statement by Dr. Madera that prison is only sure way the ensure that a

defendant does not reoffend was inadmissible because it decided the issue of

punishment for the jury. Dr. Madera’s statement decided punishment for the jury

because her statement was definitive and left the jury with no other options ensure the

safety of the community.


                       2. Counsel was ineffective for failing to object to the State’s
                          expert’s testimony that a defendant must admit
                          responsibility in order to be rehabilitated in violation of
                          Appellant’s Fifth Amendment right not to testify.
        The State asked Dr. Madera that if a defendant does not take responsibility for

his actions, does it affects their likelihood of reoffending.85 Mr. Greenlee did not object

to the question.86 Dr. Madera answered that the only hope of controlling a sex offender


81
   VII R.R. at 81.
82
   Id.
83
   VII R.R. at 141.
84
   Id.
85
   XIII R.R. at 141.
86
   Id.
                                              29
is requiring him to admit responsibility.87 Mr. Greenlee failed to object to Dr. Madera’s

answer.88


          This question and answer was a comment on Appellant’s post-arrest silence, and

violated the Appellant’s constitutional right to remain silent. U.S. Const. amend. 5, Tex.

Const. art. I § 10. This comment violated the Appellant's right to be free from

compelled self-incrimination under Art. I, § 10, Texas Constitution.707 S.W.2d 575, 578

Tex. Crim. App. 1986); Redding v. State, 149 Tex.Cr.R. 576, 197 S.W.2d 357

(Tex.Cr.App.1946).          Accordingly, Appellant must establish the statement was

admissible, and the court would have committed harmful error by overruling an

objection. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.2002), Alexander v. State, 282

S.W.3d 701, 705 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd)).


          Harm analysis is controlled by Texas Rule of Appellate Procedure 44.2. Portier v.

State, 68 S.W.3d 657, 655 (Tex. Crim. App. 2002). Courts apply Rule 44.2(b) harmless

error review for non-constitutional errors. However, when a constitutional error exists,

the courts apply Rule 44.2(a). Constitutional error arises if an evidentiary ruling

significantly undermines fundamental elements and substantial right of the accused’s

defense. Id. Under 44.2(a), the appellant must demonstrate that the trial court’s error

contributed to his conviction or punishment to obtain a reversal. Holmes v. State, 323


87
     XIII R.R. at 141-21.
88
     Id.
                                              30
S.W.3d 163, 177-74 (Tex. Crim. App. 2010). Here, Dr. Madera’s comment significantly

undermined Appellant’s fundamental and substantial right to not testify. Had Mr.

Greenlee made an objection to Dr. Madera’s improper statement, and had the trial court

overruled his objection, the court would have committed harmful error.


                       3. Defense counsel was ineffective for failing to object to the jury
                          charge.
          A defense attorney’s failure to object to a jury charge almost always amounts to

ineffective assistance of counsel when an appellate court finds that reversible error in

the omission of a jury charge without instruction. Posey v. State, 966 S.W.2d 57, 71 (Tex.

Crim. App. 1998)(Judge Womack concurrence). Here, Mr. Greenlee failed to object to

the court’s failure to include a jury instruction for the lesser included offense of

indecency with a child.89 As discussed below, the trial court’s error amounts to

egregious harm, and therefore Mr. Greenlee was ineffective for failing to object to the

jury charge.


          Mr. Greenlee was ineffective, his deficient performance prejudiced the

Appellant, and there is a reasonable probability that but for his deficient performance,

the Appellant would have been found not guilty of the charged offense, or sentenced

to life in prison.




89
     VI R.R. at 130.
                                             31
                                         ISSUE TWO
          THE TRIAL COURT ERRED IN REFUSING TO INCLUDE A
          JURY INSTRUCTION FOR THE LESSER INCLUDED
          OFFENSE OF INCEDENCY WITH A CHILD
                                      RELEVANT FACTS

          The charge submitted to the jury provided only two options: either acquit Mr.

Sanchez or find him guilty of aggravated sexual assault of a child. The trial court refused

Appellant’s request to include instruction on the lesser included offense of indecency

with a child. In doing so, the court committed reversible error.


          Mr. Sanchez’s trial counsel made a specific oral request for the lesser included

offense of indecency with a child.90 It appears that the instruction was included in the

court’s proposed jury charge:

          The Court: Have y’all had a chance to look over the charge at all?
          Ms. Dupree: We have your honor, at all.
          The Court: State have any problems with it?
          Ms. Dupree: Just we would object to the lesser as there has been no
          evidence that it was only on the outside. She very clearly stated that it was
          on the inside. Also indecency would be asking for the State to prove “with
          the intent to arouse or gratify the sexual desire,” which is not an element
          of aggravated sexual assault. So, I don’t believe it would be a true lesser
          and there’s been no evidence of it, either.
          The Court: What says the defense, please?
          Mr. Greenlee: Well, I would – I asked for the lesser because the testimony
          from the SANE nurse contradicted the testimony from the defendant.
          Excuse me, from the complaining witness.



90
     VI R.R. at 127.
                                               32
91
     After consideration, the trial court denied defense counsel’s request for the lesser

included offense of indecency of a child.92 The court then took lunch and asked if the

defense has an objection to the final jury charge.93 Mr. Greenlee did not object to the

charge.94


          A.   Indecency with a child is a lesser included offense of aggravated
               sexual assault of a child.
          A two-pronged test is used to determine whether a lesser included offense must

be included in a jury charge. The first prong in this analysis is determining if the lesser

included offense is “included within the proof necessary to establish the offense

charged.” Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (citing Royster

v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981)). This prong is purely a question of law

and does not depend on the evidence produced at the trial. Hall v. State, 225 S.W.3d

524, 535-36 (Tex. Crim. App. 2007). The second prong requires that “some evidence

must exist in the record that if the defendant is guilty, he is guilty only of the lesser

offense.” Rousseau, 855 S.W.2d at 672). Anything more than a scintilla of evidence will

suffice so long as it establishes the lesser offense as a “valid, rational alternative to the

charged offense.” Hall, S.W.3d at 536.




91
   VI R.R. at 127-28.
92
   VI R.R. at 128.
93
   VI R.R. at 129-30
94
   VI R.R. at 130.
                                             33
       Indecency with a child is a lesser included offense of aggravated sexual assault of

a child. Farrakhan v. State, 263 S.W.3d 124, 140 (Tex. App.—Houston [1st Dist.] 2006)

(disc. rev’w grt’d) (citing Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App.

1987) (holding indecency of a child is a lesser included offense of aggravated sexual

assault of a child, notwithstanding the fact that the former offense contained the

element that the defendant act with specific intent to arouse or to gratify someone's

sexual desire, while the charged offense did not.)) In Farrakhan, the Court acknowledged

Cunningham’s holding that “the lesser offense’s element of acting with specific intent to

arouse or gratify the sexual desire of any person was necessarily inherent in the greater

offense’s element of… knowingly causing the penetration of the child’s mouth…” Id.


       The First Court of Appeals “determined that the Legislature did not intend that

the ‘intent to arouse and gratify’ requirement [of indecency with a child] be excluded

from proof of the elements of aggravated sexual assault,’ which did not expressly

include that element. Farrakhan, 263 S.W.3d at 141 (citing Ochoa v. State, 982 S.W.2d

904, 908 (Tex. Crim. App. 1998); Bottenfield v. State, 77 S.W.3d 349, 352 (Tex. App.—

Fort Worth) (finding that indecency with a child is a lesser included offense of

aggravated sexual assault of a child); Sarabia v. State, 227 S.W.3d 320, 324 (Tex. App.—

Fort Worth 2002) (intent to arouse or gratify sexual desire is an implicit element of

aggravated sexual assault of a child). Moreover, a defendant is entitled to a jury charge

on the lesser included offense if there is some evidence that, if he is guilty, he is guilty


                                            34
only of the lesser. Bottenfield, 227 S.W.3d at 362 (Tex. App.—Fort Worth 2002)(citing

Lofton v. State, 45 S.W.2d 649, 652 (Tex. Crim. App. 2001).


      In applying the first prong of Rousseau to Mr. Sanchez’s case, there can be little

doubt that indecency with a child is a lesser included offense of aggravated sexual assault

of a child. Supra Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998), Bottenfield

v. State, 77 S.W.3d 349, 352 (Tex. App.—Fort Worth). A comparison of the elements

required to prove aggravated sexual assault of a child and indecency of a child would

be instructive. To prove aggravated sexual assault of a child as charged, the State would

be required to prove beyond a reasonable doubt that:


      1) A person

      2) Intentionally or knowingly

      3) Commits sexual assault as defined in Pen § 22.011(a)(1), and

      4) The victim is younger than 14 years of age.


Tex. Penal Code § 22.021(a)(2)(B).


Indecency of a child requires the State to prove that:


   1) A person

   2) With a child younger than 17 years of age

   3) Whether the child is of the same or opposite sex

   4) a. Engages in sexual contact with the child, or

                                            35
      b. Causes the child engage in sexual contact.


Tex. Penal Code § 22.11(a)(1).


      The only difference between these two offenses is that aggravated sexual assault

of a child requires penetration or contact between the defendant’s complainants sexual

organs and the defendant, while indecency with a child only requires contact of the

same. Tex. Penal Code §22.011. Furthermore, as stated above, the courts have

acknowledged that the legislature assumed that the specific intent to arouse and gratify

for an indecency charge is included in the mens rea element of aggravated sexual assault

of a child. Farrakhan v. State, 263 S.W.3d at 141 (Tex. App—Houston [1st Dist.] 2006).

Therefore, indecency with a child is a lesser included offense of aggravated sexual

assault of a child because it is established by proof of the same or less all the facts

required to establish the charged offense, and differs from the charged offense only in

respect to a less serious injury suffices to establish its commission. Tex. Code Crim.

Proc. 37.09(1)(2).


      B.     There is a question as to whether Appellant penetrated the
             Complainant’s vagina, thus, an indecency with a child instruction
             would have been proper.
      Because it can be established as a matter of law that indecency with a child is a

lesser included offense of aggravated sexual assault of a child, thus satisfying the first

prong of the Royster-Rousseau test adopted by the Court of Criminal Appeals, the second

prong must then be addressed regarding whether some evidence exists in the record
                                           36
“that would permit a jury rationally to find that if the defendant is guilty, he is guilty of

only the lesser offense.” Rousseau, 855 S.W.2d at 673.


        An examination of the record reveals that based on the evidence presented at

trial, a rational jury could have convicted Mr. Sanchezo only the lesser offense of

indecency with a child had such an instruction been included in the court’s charge.

Simply put, there is evidence that Mr. Sanchez did not penetrate the Complainant’s

vagina. Evidence on the record that would lead a jury to this conclusion includes:


         Nurse Spujt swabbed the Complainant’s vagina for DNA.95

         DNA expert Robin Freeman testified that Appellant’s DNA was
          everywhere the Complainant said Appellant touched her, except for
          her in her vagina.96

         Nurse Spujt’s testimony that she expected Appellant’s DNA to be
          found in the Complainant’s vagina based on all the facts and
          circumstances, including what the Complainant told her.97 These facts
          and circumstances include:

                o DNA was present everywhere else the Complainant alleged the
                  Appellant touched her.
                o There was no vaginal discharge that could have removed his
                  DNA from the vaginal cavity.
                o The Complainant did not shower.
                o The Complainant was not wearing a tampon.
                o A condom was not used.
                o The Complainant was not menstruating.
                o The Complainant did not douche.
                o The Complainant did not wipe or wash herself.

95
   V R.R. at 110-11, IX R.R. at State’s Exhibit 6
96
   VII R.R. at 96, 100.
97
   V R.R. at 102, IX R.R. at State’s Exhibit 6.
                                                    37
                o The Complainant did not urinate.
                o The Complainant did not defecate.
                o The Complainant did not change her clothes.98

         The Complainant testified this encounter was the first time anything
          had ever been inserted into her vagina, yet Nurse Spujt testified that
          the Complainant did not state that she did not feel any pain or
          discomfort in her vagina resulting from the insertion.99

         Nurse Spujt would have written in her SANE chart that the
          Complainant experienced pain or discomfort if the Complainant stated
          she did.100

         The Complainant testified she felt pain and discomfort, which
          conflicts with Nurse Spujt’s testimony.101

         The Complainant testified she told Nurse Spujt she felt pain and
          discomfort, which conflicts with Nurse Spujt’s testimony.102

         There were no injuries to the Complainant’s vagina.103


        Based on this evidence, a rational jury could have concluded that Mr. Sanchez

did not penetrate the complainant’s vagina. A jury could have found that Mr. Sanchez

contacted the Complainant’s vagina without penetrating it.


        If evidence from any source raises the issue of a lesser included offense,
        the charge must be given… “it is… well recognized that a defendant is
        entitled to an instruction on every issue raised by the evidence, whether
        produced by the State or the defendant and whether it be strong, weak,
        unimpeached, or contradicted.” It is then the jury’s duty, under the proper

98
   V R.R. at 110-11, IX R.R. at State’s Exhibit 6.
99
   V R.R. at 79.
100
    V R.R. at 102, IX R.R. at State’s Exhibit 6.
101
    VI R.R. at 70.
102
    VI R.R. at 70.
103
    V R.R. at 107.
                                                     38
      instructions, to determine whether the evidence is credible and supports
      the lesser included offense.
Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).


      Because there was more than a scintilla of evidence that Appellant did not

penetrate the Complainant’s vagina, he was entitled to the lesser included instruction in

indecency with a child. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (citing

Bingall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). The credibility of the

evidence which would show that Appellant was only guilty of aggravated sexual assault

of a child, not indecency with a child, is not to be taken into consideration; nor is any

conflict between these evidentiary facts to be considered—the presence of any evidence

that raised the possibility that Mr. Sanchez was only guilty of indecency with a child

requires that the instruction of the lesser included offense be given to the jury. Ross v.

State, 861 S.W.2d 870, 874 (Tex. Crim. App. 1992); Saunders v. State, 913 S.W.2d 564

(Tex. Crim. App. 1995); Banda v. State, 890 S.E.2d 42, 60 (Tex. Crim. App. 1994); O’Brien

v. State, 89 S.W.3d 753. 755 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Where

the evidence given at trial is subject to two reasonable inferences, the jury should be

instructed on both inferences. Saunders at 571; Thomas v. State, 699 S.W.2d 845, 851

(Tex. Crim. App. 1985). Because there was some evidence that Mr. Sanchez did not

penetrate the Complainant’s vagina, he was entitled to have the jury consider the lesser

offense of indecency with a child.



                                           39
           C. Refusing to give the jury instruction on indecency with a child harmed
              appellant, requiring that his conviction be reversed.
           When a defendant fails to object to a jury charge, appellate courts will not reverse

for jury-charge error unless the record shows egregious harm to the defendant. Ngo v.

State, 175 S.W.3d 738, 773-74 (Tex. Crim. App. 2005). In other words, a new trial will

not be granted unless the harm is such that the defendant was denied a fair and impartial

trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim App. 1984)(en banc). The actual

degree of harm must be viewed in light of the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial as a

whole. Id.


           Although defense counsel requested a jury charge the lesser included offense of

indecency with a child, he failed to object to the final jury charge.104 Thus, Appellant

must show that he was egregiously harmed by the trial court’s error of excluding the

indecency charge. If the absence of a lesser included offense instruction left the jury

with the sole option either to convict the defendant of the charged offense or to acquit

him, a finding of harm is essentially automatic because the jury was denied the

opportunity to convict the defendant of the lesser offense. Saunders at 571.




104
      VI R.R. at 130.
                                                40
       Here, the court’s error was egregious harm because denying Appellant’s request

for the lesser included affected the very basis of the case, deprived him of a valuable

right, and vitally affected his sole defensive theory. Ngo v. State, 175 S.W.3d 738, 750

(Tex. Crim. App. 2005). Denial of the requested lesser included jury charge resulted in

Appellant failing to receive a fair and impartial trial. Bluit v. State, 137 S.W.3d 51, 53

(Tex. Crim. App. 2004). Appellant was egregiously harmed because the jury was

precluded from considering his only defense, namely that he did not penetrate the

Complainant’s vagina. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998) (citing

Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). In cases such as this,

there is a distinct possibility that the jury, believing that Mr. Sanchez committed some

crime, but only having the option to convict him of the of the greater offense, may have

chosen to find him guilty of the greater offense, rather than to acquit him altogether,

even though it had a reasonable doubt that he really committed the greater offense.

Thus, it is clear that the trial court’s error in refusing the jury instruction on the lesser

offense of indecency with a minor resulted in egregious harm.               The trial court

committed reversible error by denying Appellant’s request to include a jury instruction

for the lesser included offense of indecency with a minor.




                                    CONCLUSION
                                             41
      Mr. Sanchez was denied his constitutional right to effective assistance of counsel.

Mr. Greenlee’s conduct of failing to read the State’s Motion in Limine, which was

intended to inform Mr. Greenlee about the Complainant’s Montgomery County

allegations of sexual abuse that resulted in no-bills, was not objectively reasonable. Mr.

Greenlee’s failures to motion for a continuance on the day before trial, at the pre-trial

conference, and on the second day of trial when the court changed his ruling was also

not objectively reasonable; nor was his failure to put the conference on the record. Mr.

Greenlee’s deficiencies of failing to object to Dr. Madera’s improper testimony, and the

jury charge also rendered him ineffective. Mr. Greenlee’s deficient performance harmed

Mr. Sanchez by denying him his fundamental rights to effective assistance of counsel

and to competently cross-examine his accuser about false allegations of sexual abuse.

Mr. Sanchez suffered great harm from his attorney’s numerous and grave deficiencies.


      Mr. Sanchez was also denied his fundamental rights to a fair and impartial trial

by the trial court’s denial of a jury instruction on the lesser included offense of

indecency with a child. More than a scintilla of evidence was presented that Mr.

Sanchez did not penetrate the Complainant’s vagina. This placed the jury in a moral

dilemma of releasing a person who may sexually assaulted the Complainant without

penetrating her vagina, or convicting him of aggravated sexual assault of child. This is

precisely the quandary that the inclusion of lesser included offenses is meant to prevent.

Under the facts of this case and with the issue of whether or not Mr. Sanchez penetrated


                                           42
the Complainant’s vagina being the paramount contested issue, the refusal to grant the

lesser included offense had a substantial effect on the outcome of the case and

constitutes egregious harm.

                                      PRAYER

      FOR THESE REASONS, Mr. Rodys A. Sanchez asks this Honorable Court of

Appeals to reverse cause number 1400848 and remand the case for a new trial, or, in

the alternative, remand for a new sentencing hearing.




                                                        Respectfully submitted,

                                                        ___________________
                                                        Cory J. Roth
                                                        Cory Roth Law Office
                                                        4306 Yoakum Boulevard, Suite
240
                                                        Houston, Texas 77006
                                                        T. 713-864-3400
                                                        F. 713-864-3413
                                                        Bar No. 24088337
                                                        Attorney for Appellant




                          CERTIFICATE OF SERVICE

                                          43
       I certify that a copy of this Brief for Appellant has been served upon the
Appellate Division of the Harris County District Attorney’s Office, on this the 21st day
of April, 2015, by filing a copy on the District Clerk’s website and requesting electronic
service to Harris County District Attorney’s Office, and was also sent first-class mail
to:

                    Rodys A. Sanchez
                    TDCJ# 1955024
                    2665 Prison Rd. #1
                    Lovelady, TX 75851

                                                       __________________
                                                       Cory J. Roth
                                                       Attorney for Appellant




                       CERTIFICATE OF COMPLIANCE

                                           44
       Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

   1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4(i)(1), this brief

       contains 8461 words printed in a proportionally spaced typeface.

   2. This brief is printed in a proportionally spaced typeface using Garamond 14

       point font in text and Garamond 12 point font in footnotes.

   3. Upon request, undersigned counsel will provide an electronic version of this

       brief and/or copy of the word printout in Court.

Undersigned counsel understands that a material misrepresentation in completing this

certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may

result in the Court’s striking this brief and imposing sanctions against the person who

signed it.


                                                      ___________________________
                                                      Cory J. Roth




                                           45
