                                                                                   ACCEPTED
                                                                              01-14-00614-CR
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                        3/18/2015 12:44:46 AM
                                                                          CHRISTOPHER PRINE
                                                                                       CLERK

                  CAUSE NUMBER 01-14-00614-CR

              IN THE COURT OF APPEALS FOR THE            FILED IN
                                                  1st COURT OF APPEALS
                   FIRST DISTRICT OF TEXAS            HOUSTON, TEXAS
                          AT HOUSTON              3/18/2015 12:44:46 AM
_________________________________________________________________
                                                  CHRISTOPHER A. PRINE
                                                            Clerk


    JASON B. JACKSON,                                APPELLANT

    VS.

    THE STATE OF TEXAS,                              APPELLEE

_________________________________________________________________


                      CAUSE NUMBER 1365982
                  IN THE 176TH DISTRICT COURT
                   OF HARRIS COUNTY, TEXAS

_________________________________________________________________

                      APPELLANT’S BRIEF
_________________________________________________________________

                                     Windi Akins Pastorini
                                     Texas Bar No. 00962500
                                     440 Louisiana, Suite 800
                                     Houston, Texas 77002
                                     713-236-7300
                                     713-224-6008
                                     windi@windipastorini.com
                                     Attorney for Appellant




               ORAL ARGUMENT NOT REQUESTED.
             STATEMENT REGARDING ORAL ARGUMENTS

      The issues in this case are such that oral arguments would not be beneficial,

therefore oral arguments are not requested.

                      LIST OF INTERESTED PERSONS

Jason B. Jackson                              Appellant, Defendant in trial court

The Honorable Stacey W. Bond                  Presiding District Court Judge
176th District Court
Harris County, Texas


Devon Anderson                                Harris County District Attorney
Criminal District Attorney
1201 Franklin Avenue
Houston, Texas 77002

Ms. Pamela Paso                               Assistant District Attorneys
Mr. Nick Social
Assistant District Attorneys
1201 Franklin, 6th Far.
Houston, Texas77002
Counsel for The State at Trial

Mr. Franklin G. Bonum                         Counsel for Defendant at trial
Mr. Randy Martin
Assistant Public Defenders
1201 Franklin, 13th Far.
Houston, Texas 77002


Windi Akins Pastorini                         Attorney for Appellant on appeal
440 Louisana, Suite 800
Houston, Texas 77002

                                         i
Bill Delmar                         Attorney for State on appeal
Assistant District Attorney
1201 Franklin Avenue
Houston, Texas 77002
Attorney for State on appeal




                               ii
                                           TABLE OF CONTENTS

Statement Regarding Oral Arguments............................................................. -i-

List of Interested Persons............................................................................... -i-

Table of Contents..........................................................................................          -iii-

Index of Authorities........................................................................................ -iv

Statement of the Case...................................................................................             1

Issues Presented...........................................................................................          2

Statement of Facts.......................................................................................            2

Issue Number One Restated.........................................................................                   10

Summary of the Argument............................................................................. 11

Argument and Authorities.............................................................................. 11

Prayer............................................................................................................   17

Certificate of Service.....................................................................................          18




                                                               iii
                                        INDEX OF AUTHORITIES

                                                 TEXAS CASES:

Geesa v. State, 820 S.W.2d 154
     (Tex.Crim.App. 1991)....................................................................                 11

O'Canas v. State,
     140 S.W.3d 695 (Tex. App.– Dallas 2003, pet. ref'd)..................                                    12

Paulson v. State,
      28 S.W.3d 570 (Tex.Crim.App. 2000)...........................................                           11

Reyes v. State,
      938 S.W.2d 718 (Tex.Crim.App. 1996)..........................................                           11


                            RULES OF APPELLATE PROCEDURE:

Rule 38.1..................................................................................................   1




                                                             iv
    TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Jason B. Jackson submits his Brief pursuant to Tex.R.App.P. 38.1 in support

of his request that his case be reversed and remanded for a new trial.

                         STATEMENT OF THE CASE

      Jason Jackson was charged with sexually assaulting David Coronado, an adult,

by anal intercourse by the use of physical force and violence on or about June 20,

2012. There was an enhancement paragraph alleging a prior conviction for possession

of a controlled substance on March 17, 2006. (CR 10).

      On June 27, 2014, Mr. Jackson, after being admonished by the Court, waived

his right to a jury trial and elected to have a bench trial, (RR 2–17) and signed a

written jury waiver. (CR 79). The trial court started hearing evidence on June 30,

2014. (RR 3–2). On July 2, 2014, the Trial Judge found Jackson guilty, found the

enhancement court true, and sentenced him to 17-years in the Institutional Division

of the Texas Department of Criminal Justice. (CR 78). On the same date, Jackson

signed a written Notice of Appeal (CR 81) and the Trial Court signed “The Trial

Courts Certification of Defendant’s Right to Appeal,” stating that Jackson had the

right to appeal. (CR 83). A Motion for a New Trial was not filed.




                                         -1-
                              ISSUES PRESENTED

              THE TRIAL COURT ABUSED ITS DISCRETION
              BY FINDING APPELLANT GUILTY BEYOND A
                       REASONABLE DOUBT.


                            STATEMENT OF FACTS

      In the early morning hours of June 20th, Mrs. Shirley Evans was sitting on her

back patio at 6922 Pinetex Drive in Humble, Texas, visiting with a friend. (RR 3– 8,

11). As she described it, “all of a sudden someone came up to the gate hysterical,

yelling, screaming ‘Help me.’” (RR 3 – 11). She went over to the gate and a man was

begging her to call 911 claiming that he had been raped. (RR 3 – 12). She called 911.

(RR 3 – 12). When asked on cross-examination if the man was injured, she said, “ it

was dark. I don't know if he had any or not” then added that he did not complain

about any injuries, (RR 3 – 14). She set the time as to when all this happened at 2:00

a.m. (RR 3 – 14).

      Mrs. Evans’s testimony was followed by the testimony of Officer Marvin

Waggoner who was dispatched in response to the 911 call. (RR 3 – 15-16). As he was

looking for the address, he was stopped by “an individual waving his arms, flagging

me down in the driveway.” (RR 3 – 17). The man said that his name was “David

Coronado.” (RR 3 – 17). The officer described Mr. Coronado as “very shaken, just


                                         -2-
talking fast, kind of like broken English,” that he “seemed scared, seemed nervous

and a little shaken. (RR 3 – 17-18). Mr. Coronado went on to say that he had been

raped. (RR 3 – 18). When asked where this happened, he pointed toward a dead end

street but was not sure of which house. (RR 3 – 18). Shortly thereafter, paramedics

arrived and Mr. Coronado was transported to a hospital. (RR 3 – 19). On cross-

examination, Mr. Coronado said the suspect had left the scene in his car. (RR 3 – 21).

      The State then called Amanda Sappington, a sexual assault nurse (SANE) at

Memorial Hermann Hospital. (RR 3 – 24). She examined Mr. Coronado and the

medical reports were admitted as States Exhibits 9, 10, 11 and 12, over Defense

objections of hearsay and confrontation violations. (RR 3 – 27-28). Mr. Coronado

told the SANE. that "After the guy Jason abused me, I escaped. His back was to me,

and that's when I ran out and hid behind the house. He forced me to have oral sex, his

penis in my mouth. He penetrated my anus with his penis and did not use a condom.

I was screaming to let me go, but he was very strong. (RR 3 – 28).

      The physical examination revealed two fresh tears on Mr. Coronado’s anus.

Later, she said these injuries were consistent with “an actual sexual assault,” but

added it was also consistent with consensual sex. (RR 3 – 3). In addition, the SANE.

did took oral swabs, anal swabs, external penile swabs, saliva swabs, right nipple and

left nipple swabs and fingernail swabbings on the right and left hand as well as dental

                                          -3-
floss and some blood collection for DNA testing. (RR 3 – 30).

      Gabriel Vasquez, a DA investigator for the Harris County District Attorney’

Office, took buccal swabs from the Accused, Jason Jackson, (RR 3 – 55) and

submitted this evidence to the Houston Police Department’s crime lab. (RR 3 – 57).

      India Henry, a criminalist/serologist with the Houston Forensic Science Center,

(RR 3 – 59) testified that she generally screens evidence for the presence of blood and

semen in sexual assault cases. (RR 3 – 60). She said the anal swabs and items

identified in the record as laboratory items 1.2, 1.4., 1.5, and 1.9 were positive for

semen. Ms. Henry stated that State’s Exhibits 34, 35, 36, 37, 38, 39 and 40, identified

in the record as DNA extract, was outsourced to Bode Technology Group for DNA

testing. (RR 4 – 8). Amanda Mendoza, a forensic scientist II previously employed

as DNA caseworker analyst II for Bode Technology Group in Lorton, Virginia (RR

4 – 44) preformed a DNA analysis on State’s Exhibit 32 – the baccal anal swab from

Jason Jackson (RR 4 – 50-51) – and determined that “the sperm fraction of the anal

swab matched the DNA profile that we obtained from Jason Jackson.” (RR 4 – 55).

      Robert Wieners, a criminal investigator assigned to special crimes, was

assigned to do the follow up investigation in this case. (RR 4 – 63-64). He developed

a suspect by determining who owned the house at 6907 where the assault occurred.

(RR 4 – 64-65) The owner was Jason Jackson. (RR 4 – 66). He also looked up a

                                          -4-
picture of Jason Jackson and it matched the description of the person who owned the

suspect house. (RR 4 – 67). The officer put a photo-spread together containing five

people including Jason Jackson, and Coronado identified Jackson as the assailant.

(RR 4 – 70). After this positive identification, Officer Wieners and his partner,

Officer Jimeno, went to Jackson’s residence, knocked on the door and Jackson

opened the door. (RR 4 – 72).

      Officer Wieners identified himself and told Jackson that he was conducting an

investigation. (RR 4 – 72) There were other people present so Jackson was asked to

step outside. (RR 4 – 72). They went outside to the foot of the driveway where

Jackson was separated from his girlfriend inside the house. (RR 4 – 72). Officer

Wieners explained that he received a report of sexual assault, and that Jackson had

been identified as a potential suspect, and that DNA evidence had been found but

there was not a match at the present time. (RR 4 – 72-73).

      After the details of the complaint were explained, Jackson responded that “he

doesn't engage in sexual activity with men and he's not a homosexual,” and strongly

denied being homosexual, and knowing homosexuals in that way. (RR 4 – 73). When

asked if he would provide a DNA sample, Jackson said the he’d like to consult a

lawyer. (RR 4 – 74). That concluded the conversation. Officer Wieners gave Jackson

his contact information and told him that if he was willing to make a formal statement

                                         -5-
in the presence of an attorney, that he would be willing to hear it. (RR 4 – 74)

      The complainant, David Coronado1 was the State’s next witness. (RR 5 – 9).

He testified that he met Jackson at a gay bar, J.R.’s, that he and Jackson talked for a

while and Jackson invited him over to his house where they could continue talking

and drinking. (RR 5 – 12-13). They left in Jackson’s car and made one stop before

ending up at Jackson’s home. They stopped at a convenience store where Jackson

bought cigarettes and some soft drinks.(RR 5 – 15). Jackson gave Coronado an

opened orange drink and Coronado claimed that after drinking it, be started feeling

dizzy but added this could have been the effect of his earlier drinking. (RR 5 – 15-

16). When they arrived at Jackson’s house, it was very dark, and Jackson explained

that he had not paid the light bill. (RR 5 – 16).

      Jackson took Coronado by the hand and led him to his room where he began

taking off Coronado’s cloths. (RR 5 – 16). Jackson began touching Coronado’s penis

and anus. Coronado said that he was frightened and asked him to quit, but Jackson

continued and penetrated Coronado’s anus with his penis. (RR 5 – 16-17). Coronado

said he tried to get Jackson to stop, that Jackson was hurting him, but Jackson did not

stop. Jackson put his fingers inside Coronado’s anus, then got on top of Coronado and


      1
        At trial, Coronado was going by the name of “David Ramos,” but since the
Court documents referred to him as “David Coronado,” this name was used in the brief.


                                          -6-
began hitting him in the face. (RR 5 – 18). While on top of Coronado, he attemted to

make Coronado give him oral sex. (RR 5 – 19). Coronado said he was scared and

feared that he might be killed as he was crying and saying the he wanted to leave. (RR

5 – 19).

      Jackson asked Coronado if he had any money and ended up taking $60.00 from

Coronado’s billfold. (RR 5 – 20). Coronado pushed Jackson off him and is so doing

a soft drink on the night stand spilled on the floor. While Jackson was cleaning up the

floor, Jackson took some of his clothes and ran out of the house. (RR 5 – 21).

Coronado hid a couple of houses away and Jackson came out of his house and left in

his car. (RR 5 – 21). Thereafter, Coronado ran further down the block until he saw

some lights on, heard voices where he managed to get some help.

      Coronado denied that this was consensual sexual encounter even though the

record reflects the following: (1) Coronado admitted going to J.R.’S, a gay bar, with

another man, Donovan, who was his friend and a person whom he was currently

living (RR 5 – 28); (2) this was not his first trip to the gay bar as he admitted going

to J.R.’s before he was picked up by Jackson; (RR 5 – 11); (3) Coronado arrived at

J.D.’s around 11:00 or 11:30 that evening, had been there for about an hour or an

hour-and-one-half before Jackson – a man that he had never met – approached him,

and after a 15 minute conversation left with him to go to Jackson’s house (RR 5 – 11-

                                          -7-
13, 31-32); (4) when they arrived at Jackson’s house it was very dark, no lights were

on, and although Coronado claimed to be frightened at this point, he made no attempt

to leave (RR 5 – 15): (5) as soon as they arrived at Jackson’s house, Jackson took

Coronado by the hand and they walked hand-in-hand into Jackson’s bedroom, and

again Coronado did not protest and made no attempt to escape (RR 5 – 15, 37-38);

(6) Jackson started taking off Coronado’s clothes and Coronado did not resist or

attempt to escape because all of his clothing was in tact and none of his garments

were torn or appeared to be forcibly ripped off (RR 5 – 16, 39-41); (7) Coronado

claimed that Jackson slapped him in the face two times but none of the witnesses who

saw Coronado after the claimed rape, saw any injuries, bruises or marks on

Coronado’s face or any where else (RR 5 – 18, 41-42); (8) when Coronado was

getting dressed to leave, Jackson made no attempt to stop him (RR 5 – 45-46); (9)

Coronado admitted knowing he could qualify for lawful status in the States as a

victim of a violent crime, such as aggravated sexual assault, and that he was

attempting to get a U-Visa. (RR 5 – 48-50).

      Jackson was called to the stand briefly and acknowledged that he was aware

of his right to testify and it was his decision not to testify. (RR 5 – 55-56).That being

said, both sides rested and closed (RR 5 – 56).

      Defense Counsel, in closing arguments, contended that this was a consensual

                                           -8-
sexual encounter and noted that the SANE examiner, Amanda Sappington, testified

that the two tears on Coronado anus were was consistent with consensual sexual

activity (RR 3 – 38; RR 5 – 56-57). He also noted that the condition of Coronado’s

clothing indicated that this was consensual sex and not a forcible sexual assault. (RR

5 – 57. Counsel argued these and other facts created a reasonable doubt and that

Jackson show be acquitted, (RR 5 – 58).

      The State, on the other hand, argued this was a sexual assault, relying primarily

on Coronado’s conduct and appearance after he left Jackson’s house as attested to by

the witnesses who saw him that night. The prosecutor said that the evidence indicated

that Jackson “is a predator, and just like any good predator, he went looking for a

hunting ground, went to the gay bar JR's and he went looking for his prey and he

decided to pick a smaller male, who wasn't from this country, foreign, and that's who

it was going to be he was going to prey on. And then he stalks his prey.”(RR 5 – 59).

After Jackson separated Coronado from “the rest of the pack,” he took his prey, “he

drives him far away, and once he's all alone, by himself, that's when this predator, the

defendant, pounces on our complainant.” (RR 5 – 60). The trial judge apparently

agreed with the State and found Jackson guilty of sexual assault. (RR 5 – 60).

      The punishment hearing began with the prosecutor reading the enhancement

paragraph which alleged that on March 17, 2006, Jackson was convicted of

                                          -9-
possessing a controlled substance in Cause No. 1365892 in the 248th District Court

of Harris County. Jackson entered a plea of “True.” (RR 6 – 5).

      The State called one witness, David Coronado, who testified about the effect

the sexual assault had on him. According to Coronado, he “was very afraid to trust

people. I didn't want anyone to get near me whenever I went out. I had a lot of

nightmares. Whenever anyone would get close to me sometimes I would jump

because of being scared, and I had a lot of fear.” (RR 5 – 6-7). He also claimed that

his work was also impacted, “Whenever I had to go to work, sometimes I got off after

dark and I w/as quite afraid to walk alone. Sometimes I had to take the bus and there

were a lot of people in there and I would be very afraid sometimes, and sometimes I

didn't want to go to work.” (RR 6 – 7).

      The Defense presented no evidence, called no witnesses, and both sides rested

and closed. (RR 6 – 7). In closing remarks the Defense asked for term at the low end

of the sentencing range and the State asked for 35 years, (RR 6 – 9-10). The trial

judge assessed a 17-year prison term. (RR6 – 10).



                      ISSUE NUMBER ONE RESTATED

             THE TRIAL COURT ABUSED ITS DISCRETION
             BY FINDING APPELLANT GUILTY BEYOND A
                      REASONABLE DOUBT.

                                          -10-
                        SUMMARY OF THE ARGUMENT

       This was what is often called a “he said, she said” case, but based upon the

facts presented at trial, this was a “he said, he did not say” case. The State’s allegation

that Jason Jackson sexually assaulting David Coronado by use of physical force

rested entirely upon Coronado’s testimony that the sexual act was not consensual.

David Coronado’s testimony was not credible and it did not support the burden of

proof required in criminal cases – proof beyond a reasonable doubt.

                        ARGUMENT AND AUTHORITIES

       In it common knowledge that the State must prove the allegations in their

charging instrument by proof beyond a reasonable doubt. The Court of Criminal

Appeals adopted a definition of reasonable doubt to be submitted in jury charges in

Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), stating that the proof

must be “of such a convincing character that you would be willing to rely and act

upon it without hesitation in the most important of your own affairs.” Paulson v.

State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000) overruled Geesa in part, holding

that held giving the full Geesa instruction was reversible error absent agreement of

the parties; and Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App. 1996), stating, “We

specifically overrule that portion of Geesa which requires trial courts to instruct juries



                                           -11-
on the definition of ‘beyond a reasonable doubt.’” Paulson did not explicitly conclude

that inclusion of the instruction was reversible error in the absence of an agreement

to include it. Paulson, 28 S.W.2d at 573. O'Canas v. State, 140 S.W.3d 695, 699

(Tex. App.– Dallas 2003, pet. ref'd) said the “better practice is to give no definition

of reasonable doubt at all to the jury.”

      All of these cases, however, deal with submitting the definition of reasonable

doubt in the jury charge, but none of them held that the Gessa definition of reasonable

was erroneous. They simply held that the definition should not be included in the jury

instructions. There is no reason why the Gessa definition should not be considered

when an appellate court must decide, as it must in this case, whether the State proved

its case beyond a reasonable doubt in a bench trial. Assuming this to be a reasonable

standard, the question before this court is: did the state present proof of such a

convincing character that the court would be willing to rely and act upon it without

hesitation as if would in their most important affairs?

      The Complainant’s Credibility. The story related by Coronado was

implausible and most people who heard it would have some serious doubts as to it’s

believability and Coronado’s credibility. But the standard of proof required in a

criminal trial setting is much greater that the standard used in day-to-day gossip. In

this setting there must be proof beyond a reasonable doubt, not a mere hunch or

                                           -12-
suspicion.

      First off, Coronado testified that he went to a gay bar, with another man,

Donovan – a person who was his friend and with whom he was currently living. And

this was not his first rodeo – he admitted going to J.R.’s before this night in question.

His stated reason for going to J.R.’s was that he had not been in Houston very long

and he was trying to meet people. (RR 5 – 9-10). His quest to “meet people” began

rather late at night because they did not get to J.R.’s until sometime between 11:00

and 11.30 in the evening. (RR 5 – 11). It does not take too much imagination to figure

out what a person is looking for by going to a gay bar close to midnight. And it is not

for the purpose of simply “meeting people,” to sooth feelings of loneliness. Men go

there at that time of night to find a “hook-up”with another gay man. At that hour and

at that location people are not there for friendship, they are there to search for a

sexual partner. To think otherwise, one would have to have the mentality of an

adoring mother explaining that her child is the only one in step in the high school

marching band.

      Next, Coronado claimed that Jackson – a person that he did not know and had

never seen – approached him. They had about a 15-minute conversation before

Coronado agreed to go home with Jackson, to talk and have some drinks, according

to Coronado, because he wanted some new friends. (RR 5 – 11-13, 31-32). The

                                          -13-
prosecutor in final arguments depicted Jackson as a “predator” and Coronado as “the

prey,” But this contention is as ludicrous as Coronado’s stated purpose of going home

with Jackson.

      Everyone familiar with criminal law is familiar with the fact that sexual

predators “groom” their victims but no one has ever heard of a 15-minute grooming

session. It must have been a grooming session on steroids or an outright fabrication.

The latter is the most obvious possibility. To think otherwise would be unreasonable.

      When they arrived at Jackson’s house, Coronado testified that it was very dark,

and that no lights were on. According to Coronado, Jackson told him that he had

failed to pay the electric bill. Coronado claimed to be frightened at this point, but he

made no attempt to leave. Instead, Jackson took the “frightened” Coronado by the

hand and they walked hand-in-hand into Jackson’s bedroom, and again Coronado did

not protest and made no attempt to escape.

      What happened next was to be expected. Coronado testified that Jackson

undressed him and began touching Coronado’s penis and anus. Coronado said that

he was frightened and asked Jackson to quit. This claim is not consistent with the

events that transpired at J.R.’s and Coronado’s willingness to abandon his friend and

to go home with a perfect stranger after a 15-minute or so encounter. It should be

obvious to anyone that Coronado went with Jackson, so they could do exactly what

                                          -14-
Jackson was doing – getting naked and fondling before getting down to the actual

sexual act. And that is what followed. Jackson penetrated Coronado’s anus with his

penis. Again Coronado claimed that he tried to get Jackson to stop, that Jackson was

hurting him, but Jackson did not stop, he continued until he ejaculated. This was

shown by the State’s evidence of a DNA swab taken from the semen in Coronado’s

anus. Coronado also claimed that Jackson put his fingers inside his anus. This is

indicative of a part of gay sex that comes after ejaculation, because, as Trial Counsel

pointed out at trial, men cannot normally maintain an erection after they ejaculate.

      Following all of this, Coronado claimed that Jackson got on top of his chest

and that his penis was still erect. Coronado told two different stories as to what

happened next. His first story was to the police and later toe the SANE nurse. He told

them that Jackson made him perform oral sex. (RR 5 – 42-43) His second story came

at trial where he claimed that Jackson attempted to make him perform oral and that

Jackson began to slap him in the face when he refused. But one thing was consistent

in both stores – that Jackson maintained an erection, and as indicated above this is

highly questionable. It should also be noted that Coronado had no indication of being

hit in the face as no one who saw him later that night testified as to any injuries,

bruises or redness to Coronado’s face.

      According to Coronado, a soft drink was spilled on the floor and he managed

                                         -15-
to get away while Jackson was leaning up the floor. Coronado, however, made no

claim that Jackson tried to stop him or chase him when he dressed and left the house

as one would expect if a sexual predator to do to keep a victim from reporting a

forcible sexual assault to the police.

      Coronado also implied throughout his testimony that Jackson had put

something in his drink on the way over to Jackson’s house. But he never made such

a claim to the police or the SANE nurse, therefore there was no testing to determine

is any such drugs were found in his system. This was a new claim made only at the

time of trial and was not made or mentioned during the initial investigation.

      All of this indicates that the State’s primary witness was not credible or worthy

of belief, and did not meet the rigorous standard of proof beyond a reasonable doubt.

      Motive. The next question is why would Coronado claim a forcible sexual

assault when his testimony indicated a consensual sexual encounter. The anser to this

question is Coronado’s immigration status. Coronado came to Houston from Central

America and knew that he could qualify for lawful status in the States as a victim of

a violent crime, such as aggravated sexual assault. He testified to such and admitted

that he was attempting to get a U-Visa based upon this alleged sexual assault.

      Physical Evidence. The only physical evidence the State presented, other than

DNA evidence, was testimony that there were some small tears to Coronado’s anus.

                                         -16-
But as pointed out by Trial Counsel’s cross-examination, these tears were consistent

with consensual sex and well as a person having a hard stool. All of the physical

evidence proved was that Coronado had anal sex – it did not prove that the sex was

forcible as alleged in the State’s indictment.

      Testimony from Other Witnesses: The only evidence supporting Coronado’s

claim of forcible sexual assault came from a neighbor and the investigating officer.

They testified that Coronado was crying and emotionally distraught. But being in this

shape in the middle of the night does not equated to proof beyond a reasonable doubt

that a sexual assault occurred.

      It is not uncommon for couples to get into a squabble in the middle of th night

and for one of them to take a hike to get away from the fray. Domestic arguments are

nothing new and the fact that a person leaves the home to escape a violent argument

is more common than not. Their testimony , however, does not cure or patch up

Coronado’s lack of credibility and when added to Coronado’s testimony does not add

up to proof beyond a reasonable doubt that Jackson sexually assaulted Coronado that

night. The trial court therefore erred in holding that the State proved its case beyond

a reasonable doubt.

                                      PRAYER

      For the foregoing reasons, Jason Jackson requests the Court to review the

                                         -17-
evidence in this case and thereafter reverse the case and remand it to the trial court

for a new trial.

                                        Respectfully submitted,

                                        /s/ Windi Akins Pastorini
                                        ___________________________________
                                        Windi Akins Pastorini
                                        Attorney at Law
                                        Texas Bar No. 00962500
                                        440 Louisiana, Suite 800
                                        Houston, TX 77002
                                        Tel. (713) 236-7300
                                        Facsimile (713) 224-6008
                                        windi@windipastorini.com
                                        Counsel for Appellant,
                                        Court-appointed on appeal.


                          CERTIFICATE OF SERVICE

        I hereby certify that a copy of Appellant’s Brief was mailed to the Appellate

Division of the Harris County District Attorney’s office on the 18th day of March,

2015.


                                        /s/ Windi Akins Pastorini
                                        ___________________________________
                                        Windi Akins Pastorini
                                        Counsel for Appellant




                                         -18-
