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                                                                                       •DIN
                                                                       COURT OFCRIMINAL APPEALS
                                  Cause m. F®-134@-14
                                                                             DEC 31201*
                                   CARL BDMCMD YX8CV
                                                 • Appellant             Abel Acosta, Clerk
                                           vs.


                                   3HE STATE (F iEXI©
                                                   Appellee



                                                                            FILED IN
                       _      _ . . __            _,                COURT OF CRIMINAL APPEALS

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



                                HONORABLE SHERRY RffiJfiCK

                                     chief jusncg:

                                 FIRST GOUW OF IBPPlftLS




                           SKfVXKB? fBR WLSCSSHIC^MAc BBVXEN




                                                        •TOCJ-CID #1842638
                                                         Alfred Stsringfellow ia»tfc
                                                         1200 F.M. 65S
                                                         Rcabaron, Texas 77SS3
CBti& JffiBSDSBflr IS WIVED
                       mmm w           mm. msnm, akd cbusml

WXKL 3WC&J

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


CUM. OOBSSgL BOB i&gpa&aSf
James Brooke

1314 Tfexess Ave., Suite 1300
Houston, Texas 77002


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


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



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



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


Clinton A* Morgan
A«frtstaafc Odtetxlct Afctjoaaiey
1201 Franklin, Suite 600
Kouston, Tesas 77802
IGEMHtW OF EAKSftES                   ...............v.......................                          1
TORLE OF OTTE&TS..                                                                                     11
INDEX OP JOTRC8ITXES...........................................                                        Hi
JURISDICTION......                  ........................................                           1
SXSRXEME&T/ CF THE CASE...                                                                    *...     1
SSAfEMSOT OF PROCSjaJRAL HISTORx"..                                                                    1, 2
(BOUNDS FOR RIVES?.............................................                                        2
      G&MZD 1 Whether the justices of tfee First Court of Appeal©
      disagresa on a material question of lew, that "the jury aao"©
      the determination that the ©GUKplainant's teetloraiy was credi
      ble.

      S&CSSJ© 2 Whether the first Court of Appeals <3@ci<3e3 en iitpoi:-
      tant question of State anS Federal Lew, by the ctu©sticneble
      reference to appellant being In jail.
mmisim m<d AUTtosrnis,..                              ,.*........*.».....,.                            2-4
GOGEIJUSXCH                                                      •                 ,..,..,....         4, 5$
5"kAxT9x .#..>.....».» . . . . . . . . v . . . f > . . . « . . . . . . « . . * ...».♦.....«..» » » ♦   5

VESICATION..                                                         .*                                5

GERTIPICaTE'CF SERVICE.                                                                                6




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



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                                            ill
                                    Cause fto. EfH&4$-*14

                                              117 TUB

                                  CCHSST CF CSIMTOAL' AFKEAtS

                                           ABOT3S .TEXAS




CARL EM23D X&KCy                                   |
            Appellant                           • .''
                                                   f   .

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



                              FE5TTTOW TOR aiBOagglCBflttBr RgWtW

TO THE HONORABLE JODGB(S) OF SAID COURT*

      COMES HOW,     Carl     B&sond Yency, Appellant pro-se in the above styled and

numbered    cause,     end     respectfully    files this his Petition for Discretionary

Review     (PER).    The      Appellant    would       show the Honorable Court the following

in support thereof;

                                          i . Jtmispimcaj

      This Honorable Court          has jurisdiction over all the natters and parties

of this H3*.

                                 ,ttm STAaBjlEKT OF t^: CASE

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

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

convicted of a felony, the- jury assessed Appellant's punishment at confinement
for forty-five (45) years end a fine of ten (10) thousand.
                             ui. sfflTe^E^ cf m/xsmm. wesmat

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


                                                •1~
February 25,        2013,       jury assessed      punishrrwit    of fiourtyfiv© (4§) years in

the Texas Department Of Criminal Jiastlce-Cerrectional Institutional division,

(herein after 1DCJ-CIB),               and    a ten      (10) thousand, dollor fine.   Appellant

filed his notics of appeal on the mn® <3sy.                  The First Court of Appeals affir

med the       judgment of         the trial      court in its opinion issued July 24, 2014.

Appellant      filed     a Motion       for Rehearing.      The Fisrst Court of Appeals denied

Appellant's lection For Rehearing on SepteBiber 1§, 2014.

                                        yy. Gmmxs mm review         .


     GUG83© 1:        Whether    the    justices of the First Court of Appeals disagreed

oil a natsrial          question       of    law, that "the jury made the determination that

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

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

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

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

Appeals.



      Appellant    oontends       the first Court of Appeals erred in finding there was

sufficient       evidence      to support       the jury returning a guilty verdict.        The

State presented         six (6) witnesses, one of which was the complainant, Natasha

Ycunajblood.     Two cf the witnesses as expert witnesses testified to the physical

evidence found          and    not found in this case; J&ary Phillips,® n$A Analyst; and

Terra    Kerr,    a     Sssaal Assault mem Examiner.             The remaining thrse witnesses

for the State, contributed to timeline of events.

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


                                                   -2-
father, and she further noted some animosity between Natasha and Appellant,

(R.R.     Vol.    3 at 27) "Brown described Appellant as a strict disciplinarian.n

(R.R.    Vol. 3 at 45)           "She testified that in 200? she bscaais aware that Appel

lant     intended       sx>   Ksove     to Ban Antonio, Texss, because he was being evicted

from hie apertfaent."           (R.R. Vol. 3 at 47)

2.      Terra Kerr        "testified that she performs bead -to toe eamiiimtlcns" (ft.R.

Vol.     3 at 59-59)             "Hatasha 'provided a history of vaginal aid anal penetra

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

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

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

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

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


                                                      -3-
6*      Lawrence $ho8$8©on,              Jr., director of thescpy at the Harris Couety Child-

rcn'a        Mmemmnfc            Center, "ConcEded that he alracst always testifies ©n behalf

©f     ths      State,     (R.R.      Vol.     4     at 22), mi$ (admitted he has not last Ratesha,

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

       ffsysical        evidence to&e collected by Terra Uerr sad B?IA <nddancs *©s tested

try    Zury Phillips.             The eutceaws tea® no shoedng of a SsKual Assault, sad snlike

***    B^am v. SMte,               881 S.W.Sd SS2; C&over v, Stats. 7S7                S.W.aS    544;   and

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

J3ata#hiafft testiitstsy In coat.

      The       Court     £mtruGte*3 tfee jury to disregard Katssha's st&te&vtnt that "She

'os&isvscl*        C-»at Asigjellant had              tossa       in   jail."   (ro n> 15 f S)   Stta 'first

Court of Appeal© concluded {-.hat the c&B^&ineftt's t«s$t.:lwGny ssas not so iftflesv

eatery       us    to     stiggwat th&c the trial court's curative .instruction mm inade

quate.         Sss ti&xzm* 24         s.w.Sd at            092.    Howsver, fistaShe's «nfcir@ testimony*

©van      if     glvan     wisfccut «woticn? its ccntejst s^d conveyances were emotionally

sieving      and    inflaoffletory,          tsMe^     curative i«*j*m:t*'?c«s >?©\ild fsot prevail the

jury from being unfairly prejudiced.
      The Court Of Appsal on appellant's First ism® agrees that th« self testi-

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

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

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




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