                     PD-1485-15                                     PD-1485-15
                                                   COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
                                                Transmitted 11/16/2015 12:17:24 PM
                                                   Accepted 11/17/2015 1:47:42 PM
                                                                    ABEL ACOSTA
                      No. _____________                                     CLERK

________________________________________________________

          IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
_________________________________________________________

                      GARY MARTINS
                     Defendant - Appellant

                             VS.

                  THE STATE OF TEXAS
                      Plaintiff – State
_________________________________________________________

            Review Sought from the Court of Appeals
                  Cause No. 14-14-00688-CR
_________________________________________________________

          Conviction in the 176th Judicial District Court
                      Harris County, Texas
                      Cause No. 1371501
________________________________________________________

 APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________

              ORAL ARGUMENT REQUESTED

                                   PENNY WYMYCZAK-WHITE
                                   TBN 22100350
                                   723 Main St. Ste. 808
                                   Houston, Texas 77002
                                   713/225-5296 (direct)
                                   713/227-5290 (fax)
                                   pennywhitetx@aol.com
 November 17, 2015
                                   ATTORNEY FOR APPELLANT
                   IDENTITIES OF PARTIES AND COUNSEL
      Appellant herein states that the names of all parties and counsel to this

appeal are:


Presiding Judge:

The Honorable Stacey Bond

Representing the State:

Jamie Felicia (at trial)
Allen Curry (on appeal)
Harris County District Attorney’s Office
1201 Franklin Street 5th Floor
Houston, Texas 77002

Representing Appellant:

Jerald K. Graber
917 Franklin, Suite 510
Houston, Texas 77002

Penny Wymwczak-White (on appeal)
Attorney at Law
723 Main St. Ste. 808
Houston, Texas 77002

The appellant:

Gary Martins




                                           1
                                        TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .....................................................1
TABLE OF CONTENTS ........................................................................................2

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

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

STATEMENT OF PROCEDURAL HISTORY ...................................................4

GROUND FOR REVIEW .......................................................................................5
ARGUMENT ............................................................................................................6
   Appellant’s Sole Ground for Review: The Court of Appeals Erred
   in Finding the Evidence Sufficient to Support Appellant’s
   Conviction for Aggravated Sexual Assault of a Child, Where the
   Evidence Failed to Show that Appellant Intentionally or Knowingly
   Engaged in the Alleged Conduct Against the Complainant. .................................6

PRAYER FOR RELIEF..........................................................................................8

CERTIFICATE OF SERVICE ..............................................................................9
CERTIFICATE OF COMPLIANCE ....................................................................9
APPENDIX .............................................................................................................10
   Opinion by Court of Appeals Dated October 15, 2015........................................10




                                                           2
                                     INDEX OF AUTHORITIES
                                                     CASES
Koah v. State,
  604 S.W.2d 156 (Tex. Crim. App. 1980)...............................................................6
Whatley v. State,
 445 S.W.3d 159 (Tex. Crim. App. 2014)...............................................................7

                                                  STATUTES
Tex. Penal Code Ann. § 22.021(a)(1)(B) (West Supp. 2014). ..................................6
Tex. Penal Code Ann. § 6.03(a) (West 2011) ............................................................6
Tex. Penal Code Ann. § 6.03(b) (West 2011) ...........................................................6

                                                     RULES
Tex. R. App. P. 66.3(b) ..............................................................................................7
Tex. R. App. P. 66.3(d) ..............................................................................................7




                                                          3
                STATEMENT REGARDING ORAL ARGUMENT
         This appeal presents novel issues of fact and law. Appellant believes that

oral argument will assist the Court in reach a fair and just decision.


                            STATEMENT OF THE CASE
         This appeal lies from Appellant’s jury trial and felony conviction.

                   STATEMENT OF PROCEDURAL HISTORY
         Appellant was charged with aggravated sexual assault of a child, alleged to

have occurred on September 7, 2012. (C.R. 21). Trial before a jury commenced on

August 13, 2014. (C.R. 183). Appellant entered a plea of not guilty. (C.R. 183).

The jury was authorized to convict Appellant for aggravated sexual assault of a

child, or indecency with a child. (C.R. 91). The jury found Appellant guilty of

aggravated sexual assault of a child. (C.R. 98). The trial court assessed punishment

at thirteen years confinement. (C.R. 102). Judgment was entered on August 15,

2014. (C.R. 102). No motion for new trial was filed. Notice of appeal was filed on

August 15, 2014. (C.R. 105). The court of appeals affirmed Appellant’s conviction

on October 15, 2015, in a memorandum opinion. No motion for rehearing was

filed.




                                            4
                        GROUND FOR REVIEW
Appellant’s Sole Ground for Review: The Court of Appeals Erred in Finding
the Evidence Sufficient to Support Appellant’s Conviction for Aggravated
Sexual Assault of a Child, Where the Evidence Failed to Show that Appellant
Intentionally or Knowingly Engaged in the Alleged Conduct Against the
Complainant.




                                    5
                                  ARGUMENT
Appellant’s Sole Ground for Review: The Court of Appeals Erred in Finding
the Evidence Sufficient to Support Appellant’s Conviction for Aggravated
Sexual Assault of a Child, Where the Evidence Failed to Show that Appellant
Intentionally or Knowingly Engaged in the Alleged Conduct Against the
Complainant.

      The indictment returned against Appellant alleged that he placed his finger

in the female sexual organ of the complainant. (C.R. 21). The complainant testified

that Appellant was asleep at the time of the alleged offense. (3 R.R. 153, 155). Her

testimony is corroborated by Sandra Sanchez, the nurse who testified that the

complainant reported to her that Appellant was asleep when he touched her. (3

R.R. 63). The fact that Appellant was asleep was further shown by his wife,

Jeanette Martins, who stated that Appellant appeared to be sleeping when she

entered the master bedroom. (2 R.R. 152).

      The State was required to prove that Appellant acted intentionally or

knowingly in placing his finger in the sexual organ of the complainant. Tex. Penal

Code Ann. § 22.021(a)(1)(B) (West Supp. 2014). A person acts intentionally with

respect to the nature of his conduct when it is his conscious objective to engage in

the conduct. Tex. Penal Code Ann. § 6.03(a) (West 2011); Koah v. State, 604

S.W.2d 156, 160 n.1 (Tex. Crim. App. 1980). A person acts knowingly with

respect to the nature of his conduct when he is aware of the nature of his conduct.

Tex. Penal Code Ann. § 6.03(b) (West 2011); Koah v. State, 604 S.W.2d at 160



                                         6
n.1. It stands to reason that if Appellant was asleep at the time of the alleged

conduct, he could not have acted intentionally or knowingly within the meaning of

the Penal Code.

      This Court should grant this petition on the grounds that the Court of

Appeals has decided an important question of state law. Tex. R. App. P. 66.3(b). In

addition, this Court should grant this petition on the grounds that the Court of

Appeals appears to have misconstrued a statute. Rule 66.3(d). This Court should

decide whether the undisputed evidence that Appellant was acting in his sleep

would allow a rational trier of fact to have found beyond a reasonable that he acted

intentionally or knowingly.

      The court of appeals relied on this Court’s decision in Whatley v. State, 445

S.W.3d 159, 166-67 (Tex. Crim. App. 2014), which upheld an aggravated sexual

assault conviction despite evidence that the defendant was sound asleep during the

commission of the alleged underlying conduct. However, the issue in Whatley was

framed in terms of whether the defendant had acted voluntarily. 445 S.W.3d at

160, 167. This Court even noted that “[t]his is a distinct inquiry from the knowing

or intentional mens rea requirement established by the provisions of §

22.021(a)(1)(B).” 445 S.W.3d at 166. This Court should grant this petition, and

decide whether Whatley is controlling precedent in Appellant’s appeal.




                                         7
                              PRAYER FOR RELIEF
      Appellant prays this Honorable Court to grant this petition, and to

summarily reverse the judgment of the court of appeals and to enter a judgment of

acquittal. In the alternative, Petitioner prays this Court to grant this petition and

order full briefs filed on the merits.


                                             Respectfully submitted,



                                             Penny Wymyczak-White
                                             PENNY WYMYCZAK-WHITE
                                             TBN 22100350
                                             723 Main St. Ste. 808
                                             Houston, Texas 77002
                                             713/225-5296 (direct)
                                             713/227-5290 (fax)
                                             pennywhitetx@aol.com

                                             ATTORNEY FOR APPELLANT




                                         8
                        CERTIFICATE OF SERVICE
      I hereby certify that on this 16th day of November, 2015, a true and correct

copy of the forgoing motion for substitution of counsel was served by fax and

email to Alan Curry, (713) 755-5809 (F), Alan.Curry@dao.hc.tx, and to the State’s

Prosecuting Attorney, (512) 463-5724 (F), information@spa.texas.gov.


                                              Penny Wymyczak-White
                                              PENNY WYMYCZAK-WHITE



                     CERTIFICATE OF COMPLIANCE
      I hereby certify that under the provisions and restrictions of Rules 9.4(i)(1)

& 9.4(i)(2)(D), Texas Rules of Appellate Procedure, the foregoing petition for

discretionary review consists of 508 words.



                                              Penny Wymyczak-White
                                              PENNY WYMYCZAK-WHITE




                                         9
                   APPENDIX
Opinion by Court of Appeals Dated October 15, 2015




                       10
Affirmed and Memorandum Opinion filed October 15, 2015.




                                              In The

                           Fourteenth Court of Appeals

                                      NO. 14-14-00688-CR

                                 GARY MARTINS, Appellant

                                                 V.
                             THE STATE OF TEXAS, Appellee

                          On Appeal from the 176th District Court
                                  Harris County, Texas
                              Trial Court Cause No. 1371501

                        MEMORANDUM OPINION
      A jury convicted appellant Gary Martins of aggravated sexual assault of a child.1
The jury sentenced appellant to confinement for thirteen years in the Institutional
Division of the Texas Department of Criminal Justice. In one issue, appellant argues
that the evidence to support his conviction is legally insufficient. We affirm.

                             Factual and Procedural Background

      On September 7, 2012, appellant’s wife, Jenetta Martins, arrived home to a quiet
and dark townhouse. Jenetta testified that when she walked towards her bedroom, she

      1
          Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011).
felt “sick, like something was wrong.” The home was dark and the television was turned
off. This was unusual because appellant routinely fell asleep on the couch while
watching television. Earlier that night, Jenetta had placed J.S., her eight-year-old niece,
in the master bedroom to sleep. When Jenetta walked into the bedroom, she saw
appellant and J.S. lying next to each other in the bed. Both appeared to be asleep.
Jenetta woke J.S. and carried her to the living room, where she noticed that her shorts
were folded down in the back. Jenetta asked J.S. if appellant had touched her. J.S. said
no. Jenetta asked J.S. again if appellant had touched her. J.S. asked if Jenetta would be
mad at her and whether Jenetta would tell appellant what J.S. said next.             Jenetta
responded that she would not. J.S. then told Jenetta that appellant had touched her. J.S.
indicated that appellant rubbed her buttocks and then demonstrated with her finger how
appellant touched her between her legs and moved his finger back and forth.

      J.S. testified at trial that appellant placed his hand in her underwear, put his finger
in her “pee side,” and moved it back and forth. J.S. also testified that she told appellant
to stop several times because he was hurting her, but that he did not listen to her
“because he was sleeping and couldn’t stop when [she] told him to.” J.S. demonstrated
for the jury where appellant had touched her on a doll. The location that J.S. indicated
corresponded with the female sexual organ.

      After J.S. made her outcry to Jenetta, she was taken to the hospital for an exam by
a forensic nurse. The nurse, Sandra Sanchez, testified at trial that, during the exam, she
found a 0.4 centimeter by 0.2 centimeter bruise on J.S.’s hymen. A photo depicting the
bruise was entered into evidence. As part of the exam, J.S’s underwear was collected as
evidence and tested by personnel at the Harris County Institute of Forensic Science. A
stain on the underwear returned a presumptive positive for blood. Male DNA detected
inside the underwear was consistent with appellant’s DNA profile. Two weeks after the
assault, Lisa Holcomb, a forensic interviewer at the Children’s Assessment Center in


                                             2
Houston, interviewed J.S. Holcomb testified at trial that J.S. disclosed the same abuse
to her during the interview.

      The jury convicted appellant of aggravated sexual assault of a child. Appellant’s
sole argument on appeal is that the evidence presented at trial was insufficient to
support his conviction because the State failed to prove that he acted intentionally or
knowingly in penetrating the female sexual organ of J.S.

                                         Analysis

      In reviewing the legal sufficiency of the evidence, we must consider “all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011). A person commits aggravated sexual assault
if he intentionally or knowingly causes the penetration of the sexual organ of a child by
any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011). Appellant does
not argue that he did not penetrate the female sexual organ of J.S. Rather, he asserts
that the evidence presented at trial was insufficient to show that he acted intentionally or
knowingly. A person acts intentionally “when it is his conscious objective or desire to
engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a) (West
2011). A person acts knowingly “when he is aware that his conduct is reasonably
certain to cause the result.” Id. § 6.03(b). Appellant claims that no rational jury could
have found that he acted with either culpable mental state because the evidence at trial
shows that he was asleep at the time that he penetrated the female sexual organ of J.S.

      J.S. testified that she repeatedly told appellant to stop touching her, but that he
continued without regard to her numerous protests. J.S. testified that she believed that
appellant was unable to stop because he was asleep. Jenetta testified that appellant
appeared to be sleeping when she entered the bedroom to find appellant and J.S. in bed

                                             3
together after the assault occurred. Appellant argues that these bits of testimony, taken
together, render it impossible for a rational jury to conclude that he acted with the
requisite state of mind for aggravated sexual assault.

      The task of evaluating testimony and drawing reasonable inferences from the
facts belongs exclusively to the jury. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We do not substitute our judgment for the jury’s when reviewing the evidentiary
sufficiency of the verdict that they rendered. Johnson v. State, 421 S.W.3d 893, 896
(Tex. App.—Houston [14th Dist.] 2014, no pet.). We only determine whether any
rational trier of fact could have reached the same conclusion after hearing the evidence
before them. Gear, 340 S.W.3d at 746.

      The jury weighed all of the evidence, forensic and non-forensic. From the
evidence, the jury reasonably could have inferred that, in spite of the testimony of J.S. to
the contrary, appellant was not actually asleep and acted either intentionally or
knowingly in penetrating the female sexual organ of J.S. J.S. was eight years old when
appellant assaulted her and ten years old when she testified at trial. The forensic
examiner testified that J.S. also appeared to be developmentally delayed. Both age and
impaired development could have affected her ability to understand whether appellant
was really unable to control his actions or whether he was just feigning sleep. J.S. slept
over at appellant’s home often and had a close relationship with him and his wife. It is
rational to infer that such a child would have honestly believed her own mistaken
testimony and trusted that appellant was not acting intentionally to hurt her and was
instead ignoring her protests because he was asleep. See Whatley v. State, 445 S.W.3d
159, 166–67 (Tex. Crim. App. 2014) (aggravated sexual assault conviction upheld
despite child’s forensic interview in which she seemed convinced that appellant, her
stepfather, was asleep when he touched her).

      The jury also considered forensic evidence that could have rationally supported a

                                             4
finding of intentional or knowing action. J.S. suffered an injury to her hymen—one
which the forensic nurse testified was uncommonly severe for the digital penetration
that J.S. reported being victim to. An injury so deep within the female sexual organ
could have given rise to a reasonable inference of intentional penetration by the
appellant. Similarly, a rational jury could have reasonably inferred that appellant’s
actions were intentional or knowing after hearing that male DNA matching appellant’s
genetic profile was found inside the underwear of J.S.

      Considering all of the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have convicted appellant on the evidence
presented to the jury. Therefore, the evidence is legally sufficient to support appellant’s
conviction for aggravated sexual assault of a child. Id. at 167. Having overruled
appellant’s sole issue, we affirm the trial court’s judgment.




                                       /s/       Marc W. Brown
                                                 Justice




Panel consists of Justices Boyce, Busby, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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