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Opinion filed August 21, 2015




                                          In The



           Clement!) Court of Appeals
                                No. 11-14-00143-CR



                   JOHN EDWARD HOLMES, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 142nd District Court
                                Midland County, Texas
                           Trial Court Cause No. CR39464



                       MEMORANDUM                     OPINION

       The jury found Appellant, John Edward Holmes, guilty of sexual assault1
and assessed punishment at confinement for a term of fifteen years. The trial court
sentenced Appellant accordingly. Appellant asserts a sufficiency issue and an
evidentiary issue on appeal. We affirm.
                                   I. The Charged Offense
       The grand jury indicted Appellant for the offense of aggravated sexual
assault.    The jury found Appellant guilty only of the lesser included offense of

       'Tex. Penal Code Ann. § 22.011(a)(1)(A) (West 2011).
sexual assault.   A person commits the offense of sexual assault if the person
intentionally or knowingly "causes the penetration of the anus or sexual organ of
another person by any means, without that person's consent."                  Penal
§ 22.011(a)(1)(A). As charged in this case, "without consent" means that the actor
compels the other person to submit or participate by the use of physical force or
violence or that the actor compels the other person to submit or participate by
threatening to use force or violence against the other person and that the other
person believes that the actor has the present ability to execute the threat. See id.
§ 22.011(b)(1), (2). The offense of sexual assault is a second-degree felony. Id.
§ 22.011(f). The range of punishment for a second-degree felony is confinement
for not more than twenty years or less than two years. Id. § 12.33(a).
                                II. Evidence at Trial

      The victim, C.S., testified that she lived with Appellant from October 26,
2011, to December 3, 2011, in Midland, Texas. The two met at a bus station in
Montgomery, Alabama, in April of that year, and after several months of
communication, C.S. moved in with Appellant and began a romantic relationship
with him. The relationship deteriorated after C.S. learned of Appellant's possible
infidelity, and C.S. confronted him about it at his place of work. After Appellant
attempted to dispel C.S.'s concerns, C.S. left but returned later to pick him up at
the end of his shift. On the way back to Appellant's apartment, Appellant became
increasingly angry at C.S.'s silence toward him.         After they arrived at the
apartment, C.S. remained silent as Appellant threatened to rape her.
      Appellant then moved some of C.S.'s belongings outside, and as C.S. exited
the apartment, Appellant grabbed her by the hair, placed her in a headlock, and
took her back into the apartment. C.S. testified that the headlock restricted her
breathing. She said that Appellant stated, "[Yjou're going to give me my p—y."
Appellant continued to assault her and restrict her breathing before he tore off her
                                          2
clothes, took her into the bedroom, threw her onto an air mattress, forced open her
legs, and penetrated her vagina with his penis. C.S. said Appellant "violently"
raped and hurt her. She testified that he said after the assault, "That's my p—y"
and "a raped p—y is the best p—y." After the rape, C.S. told Appellant she was
going to report the rape to the police. Appellant responded, "No. We're going to
take a shower," and he attempted to wash away the evidence from her vaginal area
with antibacterial soap.
      C.S. remained at the apartment that night, fearing that Appellant would harm
or kill her if she attempted to leave. C.S. dropped off Appellant at work the next
morning and returned to his apartment. C.S. packed her belongings and vandalized
Appellant's apartment. Afterward, C.S. went to Midland Memorial Hospital for
treatment and a sexual assault evaluation.

      Donna Doyle, a certified sexual assault nurse examiner (SANE), testified
she was a nurse at Midland Memorial Hospital. Doyle testified she took a medical
history from C.S. and performed a sexual assault examination shortly after C.S.
arrived at the hospital. Doyle completed a body surface and genital examination.
She collected hair and blood evidence from C.S.; scrapings and swabs from C.S.'s
fingernails; swabs from C.S.'s mouth, vagina, and anus; and a debris swab from a
bite mark. Doyle noted that C.S. had bruises on her fingers, arms, and above an
elbow; a bite mark on her inner upper arm; and vaginal injuries consistent with
sexual assault. Doyle testified that C.S. identified Appellant as her attacker, but
Doyle said she could not rule out the possibility that the bruises and injuries
resulted from consensual sex.

      Detective Rodriguez testified she took C.S's statement at the hospital just
before the SANE examination.       Detective Rodriguez's investigation led her to
suspect Appellant of the crime. When Appellant was questioned at the Midland
Police Department, after he received and waived his Miranda2 rights, Appellant
never mentioned he had a sexual relationship with C.S. However, when the DNA
samples were taken, Appellant volunteered to Detective Steven Sanders of the
Midland Police Department, without being asked any questions, that Appellant had
sexual relations with C.S. "all the time."

         Detective Sanders testified that he took DNA swabs from Appellant and
gave them to Detective Rodriguez. Detective Rodriguez obtained the results of the
SANE examination and logged them into evidence; he did the same with the DNA
swabs. Those DNA swabs were tested by Caitlyn Lott, a forensic DNA analyst,
and by Sarah Rothwell, a forensic DNA scientist—both of whom were employed
by the Texas Department of Public Safety Crime Laboratory.
         Rothwell testified that she tested samples from Appellant's swabs and
samples from C.S.'s blood and vaginal swabs. Rothwell testified that, as to the
"DNA profile from the sperm fraction of the vaginal swab, suspect Holmes cannot
be excluded as the contributor of the major component in the profile" and that the
probability of selecting an unrelated person at random to be the source of the major
component was "one in 20.62 sextillion"3 for African-Americans. She opined with
a reasonable degree of scientific certainly that Appellant was the source of the
major component in the DNA profile.
                                       III. Issues Presented

         Appellant first argues that the evidence was insufficient to support a
conviction for the lesser included offense of sexual assault.                   Second, Appellant
argues that the trial court abused its discretion when it excluded C.S.'s prior
conviction for prostitution.


         2Miranda v. Arizona, 384 U.S. 436 (1966).

         3Sextillion is a cardinal number represented in the United States by one followed by twenty-one
zeros.
                              IV. Standard ofReview
      The standard of review for sufficiency of the evidence is whether any
rational jury could have found Appellant guilty beyond a reasonable doubt.
Jackson v. Virginia, AA2> U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We review all of the evidence in the light most favorable to the jury's
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. The trier of fact
may believe all, some, or none of a witness's testimony because the factfinder is
the sole judge of the weight and credibility of the witnesses. Sharp v. State, 1Q1
S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248
(Tex. App.—Eastland 2008, pet. ref d).
      The standard of review for the admission or exclusion of evidence is an

abuse of discretion standard, and the trial court is to be afforded wide discretion in
ruling on the admissibility of a prior conviction. Theus v. State, 845 S.W.2d 874,
881 (Tex. Crim. App. 1992). The trial court has the discretion to include or
exclude evidence of a victim's prior criminal convictions. Jones-Jackson v. State,
443 S.W.3d 400, 402 (Tex. App.—Eastland 2014, no pet). A trial court abuses its
discretion when its decision lies outside the zone of reasonable disagreement.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Even if the trial
court gave the wrong reason for its decision, the decision will be upheld as long as
it is correct on some theory of law applicable to the case. Osbourn v. State, 92
S.W.3d 531, 538 (Tex. Crim. App. 2002).
                                     V. Analysis
      We will first address Appellant's challenge to the sufficiency of the
evidence. We will then address his second issue regarding the exclusion of C.S.'s
1999 conviction for prostitution.

                                          5
      A. Issue One: Sufficiency ofthe Evidence
      Appellant argues that the evidence at trial was insufficient to support his
conviction because C.S.'s actions after the sexual assault did not reflect the actions

of a typical sexual assault victim. Appellant further argues that the lack of acute
vaginal injury was inconsistent with sexual assault and was evidence of consensual
sex and his innocence.     Sexual assault victims do not react uniformly. Shaw v.
State, 764 S.W.2d 815, 818 (Tex. App.—Fort Worth 1988, pet. refd) (expert
testimony that victims of "acquaintance rape" often remain calm after the assault
and delay reporting it).   The morning after the sexual assault, C.S. returned to
Appellant's apartment and vandalized it, including the air mattress on which she
was sexually assaulted; C.S. then left Appellant's apartment with her belongings
and later reported the crime to the police.     C.S. also took some of Appellant's
personal belongings from the apartment because she hoped he would call the
police.
      C.S. initially went to the hospital for treatment, and the police were called
when C.S. explained why she was there. After C.S. reported the sexual assault to
the police, she was taken to a different location for a SANE examination. Doyle
treated C.S., and Doyle testified that C.S. sustained an injury to her vagina.
Appellant claimed there was no assault because there was no acute injury to the
labia majora, labia minora, and vagina. But Doyle outlined that, in ninety-four
percent of sexual assault cases, there is no acute injury to the labia majora, labia
minora, and vagina. Doyle also testified that C.S.'s account was consistent with
the injuries she suffered and that those injuries indicated an assault took place.
      Detective Rodriguez took C.S.'s statement at the hospital before the sexual
assault examination. Detective Rodriguez obtained the results of the examination
and logged them into evidence. Detective Sanders testified he took buccal swabs
from Appellant as part of an investigation of Appellant. Once the DNA samples
                                           6
were tested, Appellant could not be ruled out as the contributor of the sperm
portion from C.S.'s vaginal swab.      The probability that the sperm belonged to
someone else was at least one in 20.62 sextillion.

      C.S. described in detail how Appellant threatened her, tore off her clothes,
threw her onto the air mattress in the bedroom, forced her legs apart, and violently
penetrated her vagina with his penis without her consent. The jury may believe all,
some, or none of a witness's testimony because the jury, as factfinder, is the sole
judge of the weight and credibility of the witnesses. Sharp, 101 S.W.2d at 614.
The jury was free to believe C.S.        We defer to the jury's, resolution of any
conflicting inferences raised in the evidence and presume that the jury resolved
such conflicts in favor of the prosecution. Jackson, 443 U.S. at 318; Brooks, 323
S.W.3d at 894; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
We have reviewed the record, and we hold that a rational jury could have found
beyond a reasonable doubt that Appellant sexually assaulted C.S. We overrule
Appellant's first issue.
      B. Issue Two: The Exclusion of the Victim's Prior Prostitution
          Conviction

      Appellant argues he should have been allowed to introduce evidence that
C.S. had a prior conviction for prostitution. The trial court forbade Appellant from
impeaching C.S. with a remote misdemeanor conviction for prostitution. The trial
court found that the probative value of the 1999 conviction was outweighed by its
prejudicial effect.
       A trial court has the discretion "to impose reasonable restrictions or limits on
cross-examination without violating an accused's constitutional right to confront
witnesses." Nevels v. State, 954 S.W.2d 154, 157 (Tex. App.—Waco 1997, pet.
refd). Rule 609(a) provides that a witness's character for truthfulness may be
attacked by evidence that the witness has been previously convicted of a felony
crime or a crime of moral turpitude, regardless of punishment, if the trial court
determines that the probative value of the evidence outweighs its prejudicial effect
and the evidence is elicited from the witness or established by a public record.
Tex. R. Evid. 609(a); Jones-Jackson, 443 S.W.3d at 402; see also Tex. R. Evid.
412 (admissibility of evidence of victim's previous sexual conduct). Rule 609(b)
limits the reach of Rule 609(a) by providing that a conviction more than ten years
old is inadmissible, unless the court determines that "its probative value, supported
by specific facts and circumstances, substantially outweighs its prejudicial effect."
Tex. R. Evid. 609(b).
      Appellant argues the "tacking" doctrine applies and requires an analysis
under the standard of "outweighs," under Rule 609(a), rather than the standard of
"substantially outweighs," under Rule 609(b). But the tacking doctrine, as we have
recently held, no longer applies, and the "substantially outweighs" standard in
Rule 609(b) is the exclusive standard to use to determine the admissibility of C.S.'s
remote convictions. Jones-Jackson, 443 S.W.3d at 403.
      The Court of Criminal Appeals set out the following factors in Theus to
weigh the value of such evidence: (1) the impeachment value of the prior crime,
(2) the temporal proximity of the past crime relative to the charged offense and the
witness's subsequent criminal history, (3) the similarity between the past crime and
the offense being prosecuted, (4) the importance of the witness's testimony, and
(5) the importance of the witness's credibility. 845 S.W.2d at 880.
      Prostitution is a crime of moral turpitude. Holgin v. State, 480 S.W.2d 405,
408 (Tex. Crim. App. 1972); Husting v. State, 790 S.W.2d 121, 126 (Tex. App.—
San Antonio 1990, no pet.). But the impeachment value of an admission of such a
conviction is low in C.S.'s case because such an admission would not have made
her allegations less credible, given the other evidence in the case. And, although
C.S.'s credibility was an important part of the case, the lack of deception involved
                                          8
in the remote conviction and the lengthy time period between that conviction and
the present trial weighed heavily against the inclusion of the remote conviction for
prostitution. In addition, the similarity factor is inapplicable here because C.S. was
the victim of the crime. We have weighed all the relevant factors, and we hold that
the trial court did not abuse its discretion when it prohibited Appellant from
impeaching C.S. with her remote misdemeanor conviction for prostitution. We
overrule Appellant's second issue.
                                     VI. Conclusion

      We have reviewed the record and hold that there was sufficient evidence for

a rational jury to find beyond a reasonable doubt that Appellant committed the
offense of sexual assault.    We also hold that the trial court did not abuse its

discretion when it excluded evidence of C.S.'s remote conviction for prostitution.
                              VII. This Court's Ruling
      We affirm the judgment of the trial court.




                                                      MIKE WILLSON

                                                      JUSTICE



August 21, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
                                                                     £Q>Y
             LIST OF PARTIES AND RESPECTIVE COUNSEL

      Pursuant to Tex. R. App. P. 38.1(a), Appellant John Edward ^Holmes
certifies that the following is a complete list of the names and addresses of

the parties to the final judgment and their respective counsel:

 Appellant
John Edward Holmes                      Christine Schwartz
 1536 East 1-10                         State Bar No. 24056733
 Ft. Stockton, TX 79735                 Attorney at Law
 (At his last known address)            1007 W.Texas Ave.
                                        Midland, Texas 79701
                                        Appellate Counsel

                                        Mark H. Dettman
                                        Attorney at Law
                                        415 W. Wall St., Suite 101
                                        Midland, Texas 79701
                                        Trial Counsel


 Appellee
 The State of Texas                     Teresa Clingman
                                        Midland County District Attorney
                                        Midland County Courthouse
                                        500 N. Loraine
                                        Midland, Texas, 79701
                                        Appellate Counsel

                                        Steve Stallings
                                        Midland County District Attorney
                                        Office
                                        Midland County Courthouse
                                        500 N. Loraine
                                        Midland, Texas, 79701
                                        Trial Counsel
«     1




    Trial Judge
                           Hon. Elizabeth B. Leonard
                           238th District Court
                           Midland County Courthouse
                           Midland, Texas, 7^701




                  T   .i, ., ) '




                      hi
                     TABLE OF CONTENTS



LIST OF PARTIES AND RESPECTIVE COUNSEL                              ii

TABLE OF CONTENTS                                                  iv

INDEX OF AUTHORITIES                                               v

ISSUES PRESENTED/POINTS OF ERROR                                   3"

STATEMENT OF FACTS                                                 4

STATEMENT OF THE CASE                                              9

SUMMARY OF THE ARGUMENT                                           12

ARGUMENT AND AUTHORITIES

         POINT OF ERROR NUMBER ONE:
         The evidence by the State at Trial was legally insufficient
         to support a conviction for the offense of Sexual Assault...
                                            .-               "..   13

         POINT OF ERROR NUMBER TWO:
         The trial court abused its discretion when it excluded the
         victim's prior criminal convictions that were more than 10
         years old                                                18

PRAYER                                                            23

CERTIFICATE OF SERVICE                                            24

CERTIFICATE OF COMPLIANCE                                         25




                                 IV
                       INDEX OF AUTHORITIES
                                                           £0P
                                             i

UNITED STATES SUPREME COURT CASES


Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 LEd.2d 560 (1979)..
                                                                       13


TEXAS COURT OF CRIMINAL APPEALS CASES

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)              13,14

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)           14

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)....               14

King v. State, 29 S.W.3d 556 (Tex. Crim. App., 2000)                   13

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)                14

TEXAS COURTS OF APPEALS CASES

Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985)                                                              18

Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex. App.-Houston [1st
Dist.])                                                    20,21,22

Leyba v. State, 416 S.W.3d 563, 567 (Tex. App.-Houston [14 Dist.] 2013)..
                                                                       20

McClendon v. State, 509 S.W.2d 851, 855-57 (Tex. Crim. App. 1974) (op.
onreh'g)                                                           :20


Menchaca v. State, 901 S.W.2d 640 (Tex. App. - El Paso, 1995, pet. refd)
                                                                       13

Montgomery v. State, 810S.W. 272,-291 (Tex. Crim. App. 1990),         .18
                                    V
•i       •




                                                               c&\
     Rodriguez v. State, 5 31 S.W.3d 359, 363 (Tex. App.—San Antonio 2000,
     pet. refd)                                               19, 20, 21, 22

     Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.-Houston [1st Dist.]
     1990, pet. refd)                                                      20


     STATUTORY PROVISIONS


     Tex. R. Evid. 609                                                     18




                                        VI
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      I




above-entitled and numbered cause. The following terms and conditions

have the following meanings:

1)        Appellant.^vV \jl.^.LCr             ....John Edward Holmes
2)        State                               Appellee, State of Texas


3)        Spears                                        Chiquita Spears

4)        Rodriguez                          Detective Rose Rodriguez

5)        Sanders                            Seargent Steven Sanders

6)        Doyle                                            Donna Doyle

7)        Lott..                                            Caitlyn Lott

8)        Rothwell                                       Sara Rothwell

9)        RR Vol. x, p. x                   Volumes 1-6 of 6 Volumes
                                          of the Official Reporter's
                                          Record, page no. x.

10)       CRVol.x, p. x                    Volume 1 of 1 Volume of the
                                          Official Clerk's Record,
                                          page no. x.
                 ISSUES PRESENTED FOR REVIEW
                                                          tpf
POINT OF ERROR NUMBER ONE:

The evidence by the State at Trial was insufficient to support a
conviction of Sexual Assault.



POINT OF ERROR NUMBER TWO:

The trial court abused its discretion when it excluded the victim's
prior criminal convictions that were more than 10 years old.
  f
                              STATEMENT OF FACTS

     Chiquita Spears, (hereinafter Spears) and Appellant met in April 2011

in Montgomery, Alabama.          Soon after meeting, Spears and Appellant

started a romantic relationship.      By October 2011 Spears moved to

Midland, Texas to live with Appellant. Spears testified that the first couple

of weeks into the relationship everything was good.1 According to Spears

she and Appellant had consensual sex two to three times a week,2
However, the relationship starting going south when Spears suspected

Appellant was cheating on her.3 On December 2, 2012, Spears confronted
Appellant at his work about her beliefs of him cheating.4 According to
Spears, she had made the decision to end the relationship and return to her

home in Houston.5 Even though Spears had made the decision to leave,

Spears picked up Appellant from work later that day. According to §pears,




      1 R.R. Vol. 3, p. 22.

      2 R.R. Vol. 3, p. 23.

      3 R.R. Vol. 3, p. 24-25.

      4 R.R. Vol. 3, p. 25.

      5 Id.
            Appellant was angry-thatSpears wanted to return to Houston.6 Once at the <

            apartment, Appellant began to make a series of threats. While Spears

            gathered her clothes, Appellant allegedly put his arm around her neck and

            grabbed her hair.7 Spears testified she could barely breathe.8 Appellant
            began to beat her in living room. Spears testified that Appellant took off her

            jeans and took her into the bedroom.9 Once in the bedroom Appellant"

 Vyjr continued to threaten Spears.10 Appellant allegedly forced Spears's clothes
s!
     ':*>


IK
            off, lifted her legs and forcibly had sex with her.11 After the alleged incident,

            Spears made no attempts to leave the apartment for help.12 She had her
            own vehicle and Appellant did not own one at the time.13 Spears took
            Appellant to go get food. Spears testified that she stayed the night and



                  b R.R. Vol. 3. P. 26-27.

                  7 R.R. Vol. 3, p. 32-35.

                  8 Id.

                  9 R.R. Vol. 3, p. 36-37.

                  10 R.R. Vol. 3, p. 37.

                  11 R.R. Vol. 3, p. 38.

                  12 R.R. Vol. 3, p. 43.

                  13 R.R. Vol. 3, p. 70.
slept next to Appellant in the bedroom.14

       The next day, December 3, 2011, Spears took Appellant to work at

6:00 in the morning.15 After dropping off Appellant at work, she returned to

the apartment. Spears broke" dishes and cut up the air mattress.16 She

took Appellant's only decent pair of jeans and took his DVD player.17

Spears testified that she made no attempts to call the police or anyone jor

help,.18     Spears in fact returned to the apartment to destroy some of

Appellant's property. According to Spears she wanted Appellant to call the

police.19 It was not until later in the afternoon of December 3rd that Spe.ajis

went to the hospital complaining of pain and the alleged rane.20 While at

the hospital Donna Doyle (hereinafter Doyle) performed a sane exam on

Spears.         Doyle performed a series of tests and gathered slides, blood



       14 R.R. Vol. 3, p. 43-44

       15 R.R. Vol. 3, p. 81.

       16 R.R. Vol. 3, p. 83.

       17 Id.
       18
            R.R. Vol. 3, p. 43-47.                                 ZWWM
       19
            R.R. Vol. 3, p. 46.^y MMWy^&ffiif
       20 R.R. Vol. 3, p. 47-48.
samples, hair samples, and oral swabs. According to Doyle, Spears had

multiple small bruises on her body.21 Doyle could not tell the age of the
bruises by looking at them.22 Although Spears claimed Appellant choked,

her Do^le^sawjTp bruises around Sp^ars'jneck.223



                                                                           24
     After performing a vaginal exam, Doyle noted n£_brujsing or trauma.

There were no acute injuries. Detective Rodriguez (hereinafter Rodriguez)

was assigned lead detective to the case. Rodriguez testified that she met

Spears at the Midland Memorial Hospital at about 2:00 in the afternoon of
December 3, 2011.25 That same afternoon Rodriguez made contact with

Appellant. According to Rodriguez, Appellant was cooperative.26
Sergeant Sanders (hereinafter Sanders) obtained the DNA sample of
Appellant. According to Sanders, Appellant was cooperative with him as




      21 R.R. Vol. 3, p. 32.

      22 R.R. Vol. 3, p. 146. -

      23 R.R. Vol. 3, p. 147.

      24 R.R. Vol. 3, p. 151.1

      25 R. R. Vol. 3, p. 96.

      26 R.R. Vol. 3, p. 111.
well.27 The evidence from the sane exam and the DNA sample of Appellant

was sent to the lab for testing. Caityin Lott (hereinafter Lott) prepared the

samples for testing.        Lott testified that there was semen on the vaginal

swabs.28 Sarah Rothwell (hereinafter Rothwell) analyzed the samples that

Lott collected.     According to Rothwell, Appellant was the source of the

semen.



       On January 27, 2012, Appellant was indicted forLJhe_charge of

aggravated sexual assau It and assauIt fam\\yyj^s^J^yjc\\g}arig. On May

12, 2014 appellant's case was called for trial in the 238th Judicial District

Court of Midland County, Texas. Appellant by and through his trial counsel,

Mark H. Dettman, appeared at trial and pled not guilty to the charges. The

State called a total of six witnesses, however; only Spears was able to

testify regarding the actual incident. There were no other witnesses to the

incident. Appellant called no witnesses during the guilt/innocence phase of

trial. After a 4-day trial appellant was found guilty of the lesser-included
   /

sexual assault. Appellant was sentenced to 15 years confinement in the

       27 R.R. Vol. 3, p. 118.

       28 R.R. Vol. 4, p. 12.

       29 R.R. Vol. 4, p. 38.^

                                         8
institutional division of the Texas Department of Criminal Justice. Appellant

now appeals.

                       STATEMENT OF THE CASE


      Pursuant to Rule 38.1(b) of the Texas Rules of Appellate Procedure,

Appellant makes his preliminary statement. This is an appeal from a

conviction for Sexual Assault, a second-degree felony offense.

      On January 27, 2012, Appellant was indicted for the charge of

Aggravated Sexual Assault and Assault Family\^.l^cebyChoking.              In

Count One (1) it was alleged that Appellant intentionally and knowingly

cased the penetration of the female sexual organ of Chiquita Spears

(hereinafter Spears) by the sexual organ of Appellant compelled Spears to

submit and participate by the use of physical force and violence directed

against Spears and she believed Appellant had the present ability to

execute said threat and Appellant intentionally and knowingly placed

Spears in fear of death and serious bodily injury would be imminently

inflicted on Spears.    In Count Two (2) it was alleged that Appellant

intentionally, knowingly and recklessly caused bodily injury to Spears by

impending the normal breathing or circulation of the blood of Spears by

applying pressure to Spears' throat or neck or by blocking her np_seor
                                                                         30
mouth and Spears was a member of the family or household of Appellant.

     On May 12, 2014, Appellant's case was called for trial, in the 238th

Judicial District Court of Midland County, Texas.31      Appellant, by and

through his trial counsel, Mark H. Dettman (hereinafter Dettman), appeared

at trial and pled not guilty to the charges.



charged in Count One of the indictment but found Appellant guilty oMhe

lesser-included offense of sexual assault as charged in Count One of the

indictment.33 The jury found appellant not guilty of the felony offense of

assault family violence,—by choking as charged in Count Two of the

indictment. The defendant elected for the jury to assess punishment.34 <§n

May 14, 2014, the              punishment proceedings began.   After being

admonished, Appellant testified in the proceeding.35 Appellant called no

other witnesses.      On May 15, 2014, the punishment phase of the trial

     30C.R. Vol. 1, p. 7.

     31 R.R. Vol. 3, p. 6.

     32 R.R. 2, p. 132.

     33 R.R. Vol. 4, p. 107.

     34C.R. Vol. 1,p. 37.

      35 R.R. Vol. 5, p. 134-135.
                                         10
concluded.     Having found Appellant guilty of the second-degree felony

offence of sexual assault, the jury assessed Appellant's prison sentence at

fifteen (15) years confinement in the Institutional Division of The Texas

Department of Criminal Justice.36




      36 R.R. Vol. 5, p. 19.
                                    11
                                                               / trxJ
                      SUMMARY OF ARGUMENT


     Appellant raises two points of error on appeal. Appellant argues that

(1) the evidence was insufficient to convict him of the offense of sexual

assault and (2) the trial court abused its discretion when it excluded the

victim's prior criminal convictions that were more than 10 years old. The

evidence presented by the State simply insufficient to support the verdict

and trial court erred when it excluded the victim's probative remote

convictions.




                                    12
                                                                      4Co^

I.    POINT OF ERROR NUMBER ONE:


The evidence by the State at Trial was insufficient to support a
conviction for the offense of Sexual Assault.

      1.       Standard of Review and Applicable Law

      In determining whether the evidence is sufficient to support each

element of a criminal offense that the State is. required to prove beyond a

reasonable doubt, the Jackson v. Virginia37 legal sufficiency standard is

now the only standard that a reviewing court applies.38 The duty of the

court of appeals is to determine if the explicit and implicit findings of the jury

are rational by reviewing all of the evidence in the light most favorable to

the verdict. Although the courts analysis considers all of the evidence

presented at trial, the court of appeals does not re-weigh the evidence or

substitute its' judgment for that of the jury.39 Particularly, the trier of fact

serves as the sole judge of witness' credibility and weight to be afforded to

any testimony and is free to accept or reject any evidence put forth by

      37
           Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 LEd.2d 560 (1979). /Oty^

       38 see Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality
op.); Menchaca v. State, 901 S.W.2d 640, 650 (Tex. App. - El Paso, 1995, pet. refd).

      39 King v. State, 29 S.W.3d 556 (Tex. Crim. App., 2000).

                                           13
either side.40 While the jury is free to accept or reject any evidence put

forth by either side,41 an appellate court engaging in a legal sufficiency,

review must only determine whether the inferences drawn by the trier of

fact are reasonable "based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict."42:

      In deciding whether or not evidence in a given case is factually and

legally sufficient, the court must look at all of the evidence adduced at trial

to determine if viewing all the evidence impartially, it must set aside the

verdict because it is so contrary to the overwhelming weight of the evidence

as to be clearly erroneous and unjust."43

      2.       Argument

      The State's case against the Appellant rested primarily on the

testimony of Spears. Spears' admitted actions did not rise to someone that


      40 Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see Brooks,
323 S.W.3d at 899.


      41 Id.

      42 Clayton v. State, 235 S.W.3d 772, 778 (quoting Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007)).

      43 Clewis v_ State, 922 S.W.2d 126 (Tex.Crim.App. 1996); Stone v. State, 823
S.W.2d 375 (Tex.App.—Austin 1992, pet. refd, untimely).


                                         14
1   •   9                                                                      C6pU
    was sexual assaulted.             After the alleged rape, Spears never testified to

    being in fear of him. She had her own vehicle and Appellant did not own

    one at the time.44 There was no testimony that Appellant did not allow

    Spears to leave. She had her own car keys and her own set of keys to

    apartment.45 Even though she had the ability to leave, Spears chose to

    stay and sleep in the same bed with Appellant after he allegedly raped

    her.46 Spears agreed to take Appellant to work the next morning.47 Spears

    returned to the apartment and destroyed Appellant's property; broke dishes

    and cut up the air mattress.48 She took Appellant's only decent pair of

    jeans and took his DVD player.49 Spears did not go to the hospital claiming

    she had been raped until 2:00PM.50 Her actions match with a woman who

    is upset that her boyfriend is seeing another woman; not one that has been



            44 R.R. Vol. 3, p. 70.

            45 R.R. Vol. 3, p. 87.
            46 R.R. Vol. 3,p..81.

            47 R.R. Vol. 3, p. 82

            48 R.R. Vol. 3, p. 83.

            49 Id.

            50
                 R.R. Vol. 3, p. 47-48.

                                                 15
'      "         I                                                                                                                             C£pl
     sexually assau lted!Sp^aLSlJte3limoiw^

      support a conviction of Sexual Assault.

                            The State's other^witnesses, Rodriguez, Sanders, Doyle, Lott and

      Rothwell were not present during the alleged threats and sexual assault.

     The important part of the testimony of Rodriguez and Sanders was that^

                                                            ?rative. Doyle, Lott and Rothwell only confirmed that

      Spears and Appellant has sexual relations. Neither witness bolstered the

      evidence of that a sexual assault occurred. Doyle admitted the bruises can

      be caused in a variety of manner and that she^y^oJ^e^heJpi

                                                                                                                                                        52
      Spears.51 Doyle also testified that she could only tell what she is told
    i' ---rt   '^.*J.   "   ~




      Moreover, after performing a vaginal exam, Doyle noted no bri

    Jrauma.
    ^rSjaPP^^^W
                                       There
                                       • '"' " "H •"
                                                     wasnpacute
                                                       ..|^™™~--» ^-j.,-•
                                                                          injury
                                                                            ji'bwiIi
                                                                                     to    labia majora.
                                                                                     mi iyinim ifln.nii^ i| mmi'*""?1!1''1!;
                                                                                                                               There           was no acute
                                                                                                                                jgw»**S'«asr5gs^^



      injury to labia minora.55                                          There jwas^no-acute, injury^to vagina.56                                     Lott


                            51
                                 R.R. Vol. 3, P- 146-147.

                            52
                                 RR. Vol. 3, P- 148.

                            53
                                 R.R. Vol. 3, P- 151.

                            54
                                 R.R. Vol. 3, P- 151.

                            55
                                 Id.

                            56 \A



                                                                                            16
«   ''   «

                                                                       copy
    testified that she could not tell how the semen got on the sample collected

    but only that it was identified.57 Roth could not testify^ as to if a crime
    occurred; whether consensual or nonconsensual.58.

             While the jury is the sole trier of fact and any inconsistencies in the

    evidence are deemed to have been resolved by the jury in favor of their

    verdict, it is impossible that the jury could have returned a guilty verdict

    based on the evidence adduced at trial. The evidence presented by the

    State simply insufficient to support the verdict. The inferences drawn by

    this jury were unreasonable "based upon the combined and cumulative

    force of all the evidence" due to consensual sexual relationship between

    Spears and Appellant and the actions of Spears.




             57 R.R. Vol. 3, p. 27.

             58 R.R. Vol. 4, p. 40.
                                            17
»    "    *
                                                                                      copy
    II.       POINT OF ERROR NUMBER TWO:

    The trial court abused its discretion when it excluded the victim's
    prior criminal convictions that were more than 10 years old.

              1.    Standard of Review and Applicable Law


              The abuse of discretion standard applies most often to the trial court's

    evidentiary rulings.       The test for abuse of discretion is "whether the trial

    court acted without reference to any guiding rules and principles' or

    "whether the act was arbitrary or unreasonable."59 Reasonable minds can

    differ on issues such as the relevance of a particular piece of evidence, and

    "as long as the trial court's ruling was at least within the zone of reasonable

    disagreement," the appellate court should not substitute its reasonable

    perception for that of the trial judge.60 However, it explained, "when it is

    clear to the appellate court that what was perceived by the trial court as

    common experience is really no more than the operation of a common

    prejudice, not borne out in.reason, the trial court has abused its discretion."


              The admissibility of evidence of prior convictions is currently

    governed by Rule 609 of the Texas Rules of Evidence. The rule provides:

              59 Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

              60 Montgomery v. State, 810 S.W. 272, 291 (Tex. Crim. App. 1990).
                                                                               cpf°y
                 (a) General Rule. For the purpose of
           attacking the credibility of a witness, evidence that
           the witness has been convicted of a crime shall be
           admitted if elicited from the witness or established
           by public record but only if the crime was a felony or
           involved moral turpitude, regardless of punishment,
           and the court determines that the probative value of
           admitting this evidence outweighs its prejudicial
           effect to a party.

                (b) Time Limit. Evidence of a conviction
           under this rule is not admissible if a period of more
           than ten years has elapsed since the date of the
           conviction or of the release of the witness from the
           confinement imposed for that conviction, whichever
           is the later date, unless the court determines, in the                     i
           interests of justice, that the probative value of the
           conviction supported by the specific facts and
           circumstances substantially outweighs its prejudicial
           effect.

Rule 609(b) renders a prior conviction presumptively inadmissible if it is one

for which the witness has been released from custody more than ten years

before trial.61 A trial court may admit a conviction deemed to remote under

this rule if the court determines that, under the "specific facts and

circumstances" the      probative    value    of the    conviction     substantially

outweighs its prejudicial effect. This rule acknowledges that a witness "is




     61 Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.-Fort Worth 2001, pet. refd)

                                        19
                                                                                   copy
capable of reforming his character over a period of law-abiding conduct."62

H<^exe.t,Jf,evidence existed that the witness had failed to reform his

character, for example, by committing a subsequent felony or crime

involving moral turpitude, then the "taint of remoteness was destroyed and

the witness could be impeached with evidence of the prior conviction."63 If

a defendant demonstrates a failure to reform as witnessed by later criminal

behavior, remote convictions are more palatable."64

        This common-law doctrine, known as "tacking," has been utilized by

several courts of appeals when performing a                        Rule    609 analysis.

Accordingly, under this analysis, if a witness' conviction is more than ten

years old, a court would consider whether it had been "tacked" onto a

subsequent conviction, which then alters the legal standard governing its

admission.65 Under this approach, if a subsequent conviction indicates "a


        62
             Leyba v. State, 416 S.W.3d 563, 568 (Tex.App.-Houston [14 Dist.] 2013).

        63 Id., citing McClendon v State, 509 S.W.2d 851, 855-57(Tex. Crim. App. 1974) (op.
on reh'g).


        64 Hernandez v. State, 976 S.W.2d 753, 755-56 (Tex. App.-Houston [1st Dist.]),
citing McClendon, 509 S.W.2d at 855-57 and Sinegal v. State, 789 S.W.2d 383, 388
(Tex.App.-Houston [1st Dist.] 1990, pet. refd).

        65 See Jackson v. State, 50 S.W.3d 579, 591-92 (Tex. App.-Fort Worth 2001,
pet. refd); Rodriguez v. State, 5 31 S.W.3d 359, 363 (Tex. App.-San Antonio 2000,
pet. refd).
                                              20
lack of reformation," then the conviction more than ten years old may be

analyzed under Rule 609(a)'s "outweighs" standard rather than Rule

609(b)'s "substantially outweighs" standard.66

      2.         Argument

      The trial court erred when it excluded the victim's remote convictions


of prostitution.      Rj^LssiSpjaajs^                       felony probatiojLJpjL,

possession of a controlled substance at jyiaJime^Mtrial.67 On voir dire

examination by Appellant's attorney, Spears admitted to being on deferred

adjudication out of Wharton County for a felony theft.68 In addition, in 2005

she was convicted^ot,resisiing,.ar,reS;t.69 In 1999, Spears was convicted of

prostitution in Houston, Texas.70       Evidence exists that Spears failed to

reform her character. While Rule 609(b) renders a prior conviction

presumptively inadmissible if it is one for which the witness has been



      66 See Jackson, 50 S.W.3d at 591- 92; Rodriguez, 31 S.W.3d at 363;
Hernandez, 976 S.W.2d at 755-56.

      67
           R.R. Vol. 3, P- 17

      68
           R.R. Vol. 3, P- 59

      69
           Id.

      70
           Id.
                                        21
*   • )   .*.


                                                                      CJB\
    released from custody more than ten years before trial, Spears' continued

    failure to reform removes the taint of her prior conviction of prostitution.

    The Court failed to consider the tacking of the prostitution charge to her

    other crimes and thus failed to take into the account Rule 609(a)'s

    "outweighs" standard rather than Rule 609(b)'s "substantially outweighs"

    standard.71




                71 See Jackson, 50 S.W.3d at 591- 92; Rodriguez, 31 S.W.3d at 363;
    Hernandez, 976 S.W.2d at 755-56.

                                                  22
«   • I   •-
                                                            ^!_^9
                                     PRAYER


               WHEREFORE PREMISES CONSIDERED, Appellant John Edward

    Holmes respectfully requests that this Court REVERSE the trial court's

    judgment and REMAND the matter for a new trial in accordance with the

    presented issues. Appellant prays for all relief at law or in equity to which

    he is entitled.


                                 Respectfully submitted,

                                 NAVARRETE & SCHWARTZ, P.C.
                                 Attorneys at Law
                                 1007 W.Texas Ave.
                                 Midland, Texas 79701
                                 Tel: (432) 279-1479
                                 Fax:(432)279-1478




                                 CHRISTINE SCHWARTZ
                                 State Bar No. 24056733
                                 Attorney For Appellant




                                         23
<4 «0   *•




                              CERTIFICATE OF SERVICE


             This is to certify that on November 13, 2014, a true and correct copy

  of the above and foregoing document was served on Appellee, The State of

  Texas, by and through Ms. Teresa Clingman, Midland County District

  Attorney, 500 N. Loraine, 2nd Floor, Midland, Texas, by United States mail,

  first class, in accordance with Rule 9.5 of the Texas Rules of Appellate

  Procedure.




                                         Christine Schwartz




                                            24
•<*«•#-




                             IN THE COURT OF APPEALS
                               11th DISTRICT OF TEXAS
                                    Eastland, Texas

  JOHN EDWARD HOLMES,                 §
                 t
                                      §
                     Appellant,       §
                                      §
          v.                          §                 NC
                                                        NO.    11-14-00143-CR
                                      §
                                      §
  THE STATE OF TEXAS,                 §
                                      §
                     Appellee.        §


                        CERTIFICATE OF COMPLIANCE


          I certify the Appellant's Brief was prepared with Microsoft Word 2011
  and that according to that program's word-count function, the sections
  covered by Tex. R. App. P. 9.4(i)(3) contains 3.582 words. I further certify
  the body text is 14 point font.




                                      Christine Schwartz
                                      Attorney for Appellant




                                          25
