                                                                 December 29, 2014
                                      NO. PD-1363-14


                       TO THE COURT OF CRIMINAL APPEALS

                      FOR THE STATE OF TEXAS
      ___________________________________________________________

                             EMMANUEL VON ALLEN EVANS

                                         Appellant

                                            V.

                                     STATE OF TEXAS

                                Appellee
      ___________________________________________________________

       Petition for Discretionary Review from the Fourteenth Court of Appeals
                  In No. 14-13-00476-CR, Affirming the Conviction
                                 In Cause No. 133,9815
                              th
                 From the 248 District Court of Harris County, Texas
                       Honorable Katherine Cabaniss, Presiding
      ___________________________________________________________

               PETITION FOR DISCRETIONARY REVIEW
      ___________________________________________________________
                                              Mark A. Rubal
                                              SBN 17360325
                                              The Rubal Law Firm
                                              15150 Middlebrook Dr.
                                              Houston, Texas 77058
                                              mrubal@ws-law.com
                                              (281) 286-2222 Telephone
                                              (281) 488-4597 Telefax


Appellant Emmanuel Von Allen Evans                                         Page
Petition For Discretionary Review                                          1
                                      TABLE OF CONTENTS

             TABLE OF CONTENTS.........................................................           2

             INDEX OF AUTHORITIES....................................................             3

             STATEMENT REGARDING ORAL ARGUMENT..............                                      4

             STATEMENT OF THE CASE................................................                4

             PROCEDURAL HISTORY.....................................................              9

             GROUNDS FOR REVIEW.....................................................              9

             REASON FOR REVIEW........................................................            9

             ARGUMENT..........................................................................   10

             PRAYER FOR RELIEF..........................................................          15

             CERTIFICATE OF SERVICE................................................               16

             CERTIFICATE OF FILING....................................................            16

             CERTIFICATE OF COMPLIANCE........................................                    17


             APPENDIX:
                 MEMORANDUM OPINION FROM THE FOURTEENTH
                 COURT OF APPEALS, ISSUED SEPTEMBER 25, 2014.




Appellant Emmanuel Von Allen Evans                                                                     Page
Petition For Discretionary Review                                                                      2
                                      INDEX OF AUTHORITIES

    CASES

    Biggs v. State, 921 S.W.2d 282 (Tex. App.-Houston [1st Dist]
          1995, pet. ref’d).......................................................................       10

    Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)....................                             12

    King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997).......................                            11

    Kotteakos v. U.S., 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557
          (1946)......................................................................................   11

    Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000).................. 10

    Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002).................... 11

    Page v. State, 88 S.W.3d 755 (Tex. App.-Corpus Christi 2000, rev’d
          on other grounds, 137 S.W.3d 75 (Tex.Crim.App. 2004))......... 11

    Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001)..................... 10

    Webb v. State, 36 S.W.3d 164 (Tex. App.-Houston [14th Dist] 2000
         pet. ref’d)..................................................................................   11



    CONSTITUTIONS, STATUTES, AND OTHER AUTHORITIES

    Tex. Code Crim. Proc. Ann art. 38.072..............................................                  10

    Tex. R. App. P. 44.2(b).......................................................................       11




Appellant Emmanuel Von Allen Evans                                                                            Page
Petition For Discretionary Review                                                                             3
                   STATEMENT REGARDING ORAL ARGUMENT

             In the event this Petition for Discretionary Review is granted, oral

    argument is waived unless it would otherwise aid the Court in determining the

    issue(s) presented.



                                     STATEMENT OF THE CASE

             On March 8, 2012, Appellant Emmanuel Von Allen Evans (“Evans”)

    was charged with Aggravated Sexual Assault of a Child, under cause number

    133,9815. (CR, Vol. 1; p. 8). Evans was indicted on June 4, 2012, and

    enhanced with a prior conviction for sexual assault of a child. The indictment

    alleged that the Defendant [Evans] .. “on or about February 29, 2012, did then

    and there unlawfully, intentionally and knowingly cause the sexual organ of

    A.E., a person younger than fourteen years of age, to contact the mouth of the

    Defendant. (CR, Vol. 1; p. 15).

             On May 28, 2013, a jury was selected to hear the charges against Evans.

    (CR, Vol. 1; pp. 173-178) and (RR, Vol. 3). The jury found Evans guilty as

    charged in the indictment on May 30, 2013. (CR. Vol. 1; p. 186) and (RR,

    Vol. 5; p. 40).

             Thereafter, the Court heard punishment evidence and on May 30. 2013,

Appellant Emmanuel Von Allen Evans                                              Page
Petition For Discretionary Review                                               4
    the Judge sentenced Evans to confinement for life in the institution division of

    the Texas Department of Criminal Justice. (CR, Vol. 1; pp. 188-189) and (RR,

    Vol. 5; pp. 42-52). On the same day, Evans filed his Notice of Appeal (CR,

    Vol. 1; pp. 192-193).

             The evidence presented at trial showed that on February 29, 2012,

    around 10:00 PM, the complainant’s mother, Tiffany Franklin (“Franklin”) was

    taking a shower with her youngest child, in the master bath of her home in

    Katy, Harris County, Texas.1 Evans, who was living with Franklin at the time,

    was in the master bedroom. Elijah, Franklin’s oldest son, was in the living

    room at the home working on the computer. The complainant (A.E.) was in

    her bedroom, which was across the hall from the master bedroom.

             Elijah testified that he saw a shadow going across the hall from the

    master bedroom to the complainant’s bedroom. After about five (5) minutes,

    Elijah said he went to his sister’s bedroom to check on her and saw Evans

    standing at the foot of A.E.’s bed. The complainant was on her bed, laying on

    her back and with her legs pointing out facing Evans. He couldn’t recall if

    A.E. had her clothes on or not but he saw Evans with his pants down. Elijah



        1
             At the time, the age of Franklin’s four children were Elijah (16), the
complainant (13) and two other younger daughters (5) and (3).
Appellant Emmanuel Von Allen Evans                                                    Page
Petition For Discretionary Review                                                     5
    further testified Evans appeared to be masturbating based on the movements

    of his shoulder and arm. However, he did not see Evans’ penis. Elijah asked

    Evans what he was doing and Evans said he could explain. Elijah then went

    into the master bath to tell his mom and Evans followed. When Evans was

    explaining to Franklin what happened, Elijah left the room.

             Franklin testified when Elijah and Evans came into the master bedroom

    Elijah was upset. Elijah left the bedroom and called 911. Evans then

    supposedly admitted to Franklin that he went into the complainant’s room and

    asked to see her private. Evans said he then pulled his penis out and began

    masturbating. He also stated that he pulled the complainant’s panties to the

    side and started fondling her. Franklin said the only explanation that Evans

    gave for his conduct was that he tripped and blacked out. Franklin then talked

    to A.E. who told her that Evans had touched her private. Franklin couldn’t

    remember if A.E. told her that night or sometime later that Evans had put his

    mouth on her private.2


        2

        When the police arrived at the house they separated everyone, handcuffed Evans and
put him in a patrol car. The officers did take statements from both Elijah and Franklin.
Franklin did not mention in her statement that A.E. told her Evans had put his mouth on her
private. However, Franklin did testify in front of the jury that sometime after A.E. was seen
at the Child Assessment Center, but before Evans was arrested that A.E. did outcry to her that
Evans had put his mouth on her private.
Appellant Emmanuel Von Allen Evans                                                    Page
Petition For Discretionary Review                                                     6
             After Elijah called 911, EMS were the first to arrive at the house. The

    paramedics checked out A.E. in the ambulance and then left her at the scene.

    The police arrived while A.E. was still being checked out by EMS. Deputy

    Papa, with the Harris County Sheriff’s Office, did talk briefly to the

    complainant. He also spoke with both Elijah and Franklin and obtained

    written statements from them about what had occurred. Two other deputies

    showed up at the house, but no one did a formal interview with A.E. Franklin

    did provide the officers the complainant’s panties, shorts, and shirt which were

    tagged as evidence. The evidence was never tested. Franklin further testified

    that she was told to take A.E. to the hospital that evening. However, Franklin

    said she chose not to take the complainant at that time because A.E. did not

    want to go.

             Franklin was contacted by child protective services the next day. On

    March 2, 2012, she took Elijah and A.E. to the Child Assessment Center in

    Houston and they both provided formal statements. A.E. was also examined

    by Dr. Reena Isaac, a pediatrician at Texas Childrens Hospital, and assigned

    to the Child Assessment Center on March 7, 2012. Dr. Isaac testified that the

    examination of A.E. was normal and A.E. never told her anything about Evans

    putting his mouth on her private.

Appellant Emmanuel Von Allen Evans                                              Page
Petition For Discretionary Review                                               7
             A.E. did testify at the trial. She told the jury that Evans did put his

    mouth on her private, but she also admitted that she never told anyone at the

    Child Assessment Center that Evans had put his mouth on her private, except

    for the doctor (Dr. Isaac) who examined her. A.E. said she told her mom about

    the allegation, she told the prosecutor about the allegation, and she provided

    a written statement about the allegation to a police officer the night of the

    incident. However, no written statement was ever produced by the State and

    no officer could testify that they ever took or received a written statement from

    A.E. the night of the incident.

             Notwithstanding, on or about March 6, 2012, Franklin testified she

    called Evans and recorded the conversation. The recording was admitted as

    State’s Exhibit 1. When the prosecutor played the recording for the jury, he

    also provided a transcript of the recording for the jury to follow. Franklin

    identified Evans as the other person on the recording and during the

    conversation Evans supposedly admitted that he did put his mouth on the

    private area of A.E.

             Evans did not testify in the trial.

             The appellate record consists of one (1) volume of the Clerk’s Record

    (CR, Vol. 1; p. ___), one (1) supplemental volume of the Clerk’s Record

Appellant Emmanuel Von Allen Evans                                               Page
Petition For Discretionary Review                                                8
    (SUPP. CR, Vol. 1; p. ___) and six (6) volumes of the Reporter’s Record (RR,

    Vol. ___; p.___).

                                     PROCEDURAL HISTORY

             On September 25, 2014, in an un-published opinion, the Fourteenth

    Court of Appeals affirmed the judgment against Appellant. (The opinion is

    attached as the Appendix to this petition). No motion for rehearing was filed,

    but Evans did file a pro se motion to extend the time to file a petition for

    discretionary review, which was granted by the Court of Criminal Appeals.

    The deadline for filing a petition for discretionary review is December 29,

    2014.



                                     GROUND(S) FOR REVIEW

    1.       THE TRIAL COURT ERRED BY ADMITTING OUTCRY
             TESTIMONY THAT WAS NOT PROPERLY DESIGNATED UNDER
             ART. 38.072 OF THE TEXAS CODE OF CRIMINAL PROCEDURE.


                                      REASON FOR REVIEW

             On appeal, Evans complained about the State’s failure to provide him

    notice of any outcry statement(s) relating to the allegations in the indictment.

    Specifically, Evans objected to the testimony by Franklin that A.E. had told her


Appellant Emmanuel Von Allen Evans                                              Page
Petition For Discretionary Review                                               9
    Evans put his mouth on her private. (RR, Vol. 4; pp 91-92). The Court of

    Appeals held that the State did not satisfy the procedural requirement of notice

    under article 38.072 of the Texas Code of Criminal Procedure. Nonetheless,

    the Court determined that the error was harmless since the admitted hearsay

    testimony did not affect Evans’ substantial rights.          (See Pp. 5-7 of

    Memorandum Opinion; citing Schutz v. State, 63 S.W.3d 442, 443 (Tex. Crim.

    App. 2001), Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000), and

    Biggs v. State, 921 S.W.2d 282, 287-88 (Tex. App.-Houston [1st Dist] 1995,

    pet. ref’d). Evans believes the Court of Appeals was wrong and respectfully

    requests this Honorable Court to review his case further.



                                     ARGUMENT

    1.       THE TRIAL COURT ERRED BY ADMITTING OUTCRY
             TESTIMONY THAT WAS NOT PROPERLY DESIGNATED UNDER
             ART. 38.072 OF THE TEXAS CODE OF CRIMINAL PROCEDURE.


             The Court of Appeals relied upon the complainant’s testimony (that

    Evans put his mouth on her private) and the recorded telephone conversation,

    allegedly between Evans and Franklin (wherein he admitted licking the

    complainant’s private), to conclude that the erroneously admitted hearsay was


Appellant Emmanuel Von Allen Evans                                              Page
Petition For Discretionary Review                                               10
    harmless. (See P. 7 of Memorandum Opinion). In order to find harmful error

    a reviewing court must determine if the error affected the Appellant’s

    substantial right(s). Tex. R. App. P. 44.2(b).

              A substantial right is affected when the error had a substantial and

    injurious effect or influence in determining the jury’s verdict. Page v. State,

    88 S.W.3d 755 (Tex. App.-Corpus Christi 2000, rev’d on other grounds, 137

    S.W.3d 75 (Tex.Crim.App. 2004)) and King v. State, 953 S.W.2d 266, 271

    (Tex.Crim.App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 766, 66 S.Ct.

    1239, 90 L.Ed. 1557 (1946)). If the reviewing court is unsure whether the

    error effected the outcome then it should be treated as harmful. Page at 766;

    Webb v. State, 36 S.W.3d 164, 182(Tex.App.-Houston [14th Dist.] 2000, pet.

    ref’d).

              The material factors in conducting a harm analysis are: (1) the evidence

    admitted, (2) the nature of the evidence supporting the verdict, including

    whether the evidence was overwhelming, (3) the character of the alleged error

    and how it might be considered in conjunction with other evidence in the case,

    (4) the jury instructions, (5) the State’s theory and any defensive theories, (6)

    closing arguments, (7) voir dire, and (8) whether the State emphasized the

    error.      Page at 766; citing Motilla v. State, 78 S.W.3d 352, 355-57

Appellant Emmanuel Von Allen Evans                                                Page
Petition For Discretionary Review                                                 11
    (Tex.Crim.App. 2002).

             In this case the State chose to charge Evans with the allegation that he

    “caused the sexual organ of A.E. to contact his mouth”. The evidence admitted

    by the State to prove the allegation included the testimony of A.E, the

    testimony of Franklin and the recording allegedly between Franklin and Evans.

    No other witness testified to the substantive allegations in the indictment.

             The Trial Attorney for Evans emphasized the absence of any other

    testimony concerning the allegation in her closing. She pointed out to the jury

    that the brother of the complainant who walked into the room with Evans and

    A.E. could not testify exactly what happened. (RR, Vol. 5; p. 14). Nor was he

    able to tell the 911 operator what happened. (RR, Vol. 5; p. 15). Additionally,

    Trial Counsel for Evans told the jury that A.E. never told the forensic examiner

    at the Child Assessment Center about the allegation nor did she tell Dr. Isaac,

    who examined her after the incident, about the allegation. (RR. Vol. 5; p. 17).

    In essence, Evans argued that the truth of the allegation was solely dependant

    on the jury’s assessment of the credibility of Franklin and A.E.

             Both Franklin and A.E. contradicted testimony of other witnesses. A

    reviewing court must give deference to the jury to fairly resolve conflict in

    testimony. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.               2007).

Appellant Emmanuel Von Allen Evans                                               Page
Petition For Discretionary Review                                                12
    However, by the Trial Court improperly admitting the complained about

    hearsay, the Judge gave the State more ammunition to bolster the credibility of

    both Franklin and A.E.

             The credibility of Franklin was essential because the jury needed to

    believe her testimony about the recording she made which was allegedly

    between Evans and herself. No witness, other than Franklin could provide any

    testimony about the recording. Trial Counsel for Evans even pointed out the

    issue to the jury arguing that absent Franklin’s testimony there was no other

    evidence to prove up the recording. No cell phone records were introduced to

    connect the call to Evans. (RR, Vol. 5; p. 27).

             A.E.’s testimony was equally essential to support the jury’s verdict. She

    related to the jury that she told her mom (Franklin) and the prosecutor (Aaron

    Burdette) about the specific allegation in the indictment. In fact, the testimony

    suggests that the prosecutor may have been the proper outcry witness for the

    indicted allegation. (RR, Vol. 4; p. 156). Additionally A.E. testified that she

    told Dr. Isaac about the specific allegation and provided a written statement

    containing the allegation to Deputy Pappa. Deputy Pappa was the officer who

    first investigated the incident at the Franklin home on February 29, 2012. But,

    the doctor’s records clearly show that A.E. never told him about the allegation.

Appellant Emmanuel Von Allen Evans                                                Page
Petition For Discretionary Review                                                 13
    Furthermore, Deputy Pappa testified he never received any such statement

    from A.E. on February 29, 2012 or any time after.

             Nonetheless, the prosecutor did use the asserted outcry in his closing

    argument to support the phone recording and the complainant’s credibility. He

    argued that:

              “If you don’t believe A.E. and Elijah, do you believe the defendant

             when he says what he did to her? If you still want more evidence, let’s

             listen to this call. (Tape played.) She told me that. She told me that,

             too. It’s the last line that I just played for you. She told her mother

             before March 6, 2012, what he did to her.         So any argument or

             suggestion that I was the first person that told is misplaced because the

             recording was made on March 6, 2012.” (RR, Vol. 5; pp. 34-35).

             Accordingly, given the evidence proffered at trial and the importance of

    the credibility issue(s), it is reasonable to conclude that the error by the Trial

    Judge in admitting the hearsay evidence did affect a substantial right of Evans.

    The State was able to unfairly bolster the testimony of both Franklin and A.E.

    with the objectionable testimony. At the same time, Evans was prejudiced

    because he should have been able to rely on the State’s failure to provide him

    statutory notice of any outcry evidence in preparing his defense. Under the

Appellant Emmanuel Von Allen Evans                                                Page
Petition For Discretionary Review                                                 14
    circumstances, it is logical to conclude that the error did have a substantial and

    injurious effect or influence in determining the jury’s verdict. Alternatively,

    if the Court is unsure whether the error may have effected the outcome then the

    error should still be treated as harmful. As a result, the error cannot be

    considered harmless and the conviction should be reversed.

                                     PRAYER FOR RELIEF

             Evans respectfully prays that the Court of Criminal Appeals review his

    case and after re-examination reverse his conviction, remand his case back to

    the Trial Court or the Court of Appeals for further analysis or enter an order for

    acquittal. Appellant further requests any and all such other relief to which he

    may be legally and justly entitled.


                                             Respectfully Submitted,


                                              /s/      Mark A. Rubal
                                             By: Mark A. Rubal
                                             SBN 17360325
                                             The Rubal Law Firm
                                             15150 Middlebrook Dr.
                                             Houston, Texas 77058
                                             mrubal@ws-law.com
                                             (281) 286-2222 Telephone
                                             (281) 488-4438 Telefax
                                             Attorney for Appellant


Appellant Emmanuel Von Allen Evans                                                Page
Petition For Discretionary Review                                                 15
                                 CERTIFICATE OF SERVICE

             I hereby certify that a true and correct copy of this Petition was served

    upon the District Attorney of Harris County, Texas, on this the 23rd day of

    December, 2014, by mailing a copy to the Appellate Division, 1201 Franklin,

    6th Floor, Houston, Texas 77002.

             I further certify that, on the same day, a true and correct copy of this

    Petition was mailed to Appellant, Emmanuel Evans, SPN 1862965, Telford

    Unit 7H2-27, 3899 State Highway 98, New Boston, Texas 75570 by CMRRR

    NO. 7013 1710 0001 3124 4090.



                                               /s/      Mark A. Rubal
                                               Mark A. Rubal


                                     CERTIFICATE OF FILING

             I further hereby certify that the foregoing petition and Appendix was

    filed with the Clerk of the Court using the CM/ECF System on December 23,

    2014.

                                               /s/      Mark A. Rubal
                                               Mark A. Rubal




Appellant Emmanuel Von Allen Evans                                                Page
Petition For Discretionary Review                                                 16
                             CERTIFICATE OF COMPLIANCE

             Pursuant to TEX. R. APP. PROC. 9.4, undersigned counsel certifies that

    this brief complies with the form requirements of the rule and exclusive of the

    portions exempted by the rule, this brief contains 2,488 words printed in a

    proportionally spaced typeface.



                                            /s/      Mark A. Rubal
                                            Mark A. Rubal




Appellant Emmanuel Von Allen Evans                                             Page
Petition For Discretionary Review                                              17
