"7 52-15
IN THE COURT OF CRIMINAL APPEALS 0R1
CHARLES ANTHONY GREEN, PETITIONER
§
vs. § CASE No. PD-0752-15
§
§ RECEIVED IN
§ COURT OF CRiWAL APPEALS
THE STATE OF TEXAS, APPELLEE
SEP 14 2015
Abel Acosta, Clerk
COURT OF APPEALS CAUSE No. 02-14-00426-CR
FILED IN
FROM THE 432nd DISTRICT COURT C°WOFCR,M/^AppEALs
OF TARRANT COUNTY, TEXAS
SEP 17 2015
POST DISCRETIONARY REVIEW Abe/Acosta, Clerk
PETITIONER
CHARLES ANTHONY GREEN
#1959504 WYNNE UNIT
810 FM 2821
HUNTSVILLE, TEXAS.
77349.
TABLE OF CONTENTS
IDENTITY i
INDEX OF AUTHORITIES . ill
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1,
ISSUES PRESENTED 2,
STATEMENT OF PROCEDURAL HISTORY 1,
ARGUMENTS 3,
PRAYER 10,
INMATES DECLARATION 11,
CERTIFICATE OF SERVICE 11,
11
INDEX OF AUTHORITIES
CODE OF CRIM. PROC 37.09 3,
CODE OF CRIM. PROG. 38.14 10,
PENAL CODE 1.07 3,10
PENAL CODE CODE 12.32 3,4
PENAL CODE 12.33 4,
PENAL CODE 43.01 3,
PENAL CODE 43.02 3,
PENAL CODE 22.011 3,
TEXAS RULES OF APP. PROC 66.3(c) 3,
TEXAS RULES OF APP. PROC'.-"' 66.3(f) 3,
TEXAS RULES OF EVID. 803(2) 6,8,
APOLINAR v. STATE, 155 SW-3d 184 (Tex.Crim.App. 2005) 6,
BANKS v. REYNOLDS, 54 F.3d 1508 (10th.Cir. 1995) 4,
CLEWIS v. STATE, 922 3W.2d 126 (Tex.Crim.App. 1996) 8,
COLEMAN v. STATE, 145 SW.3d 649 (Tex.Crim.App. 2004) 8,
JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979) 6,7,11,
MALIK v. STATE, 953 SW. 2d 234 (Tex.Crim.App. 1997) 7,
MATTIA8 v. STATE, 731 SW.2d 936 (Tex.Crim.App. 1987) 3,
MIDENCE v. STATE, 108 SW.3d 564 (Tex.App. Houston [14th Dist] 2003) 7,
MILLER v. WAIWWRIGHT, 798 F. 2d wainwright, 798 F.2d 426 (11th.Cir. 1986) 9,
OLDEN v. KENTUCKY, 109 S.Ct. 420 (1988) 4,5,10,
ROBERTSON v. STATE, 163 SW.3d 730 (Tex.Crim.App. 2005) 10,
REDMOND v. KINGSTON, 240 F.3d 590 (7th.Cir. 2001) 8,
THOMPSON v. STATE, 9 SW.3d 808 (Tex.Crim.App. 1999) 4,
U.S. V. CRONIG, 104 S.Ct. 2039, (1984) 3,
U.S. V. OLANO, 507 U.S. 725, (1993) 4,10,
U.S. v. STOVER, 329 F.3d 859 (D.CCir. 2003) 4,
U.S. V. TUCKER, 345 F.3d 320 (5th.Cir. 2003) 4,
in
CASE NO. PD-0752-15
COURT OF APPEALS No. 02-14-00426-CR
... ,- TRIAL COURT No. 1303703D
CHARLES ANTHONY GREEN, Petitioner § IN THE COURT OF
§
CRIMINAL APPEALS
THE STATE OF TEXAS, Appellee § AUSTIN, TEXAS.
PETITION FOR DISCRETIONARY REVIEW
TO: THE HONORABLE JUSTICES OF SAID COURT:
Comes Now, Charles Anthony Green, petitioner, pro-se, and files his petition
for discretionary review. He shows the Court the following:
STATEMENT OF THE CASE
Charles Anthony Green, petitioner, was indicted and convicted of aggravated
sexual assault in Tarrant County, Texas on April 10, 2014, on a plea of not
guilty. On October 3, 2014, the petitoner was sentenced to 50 years in the
Texas Dept. of Criminal Justice, Appeal was taken, and is the subject of the
present judicial action, Post Discretionary Review.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals hooded down its opinion on June 4, 2015, to affirm the
appellate Charles Anthony Green conviction.
No motion for rehearing was filed.
IN HIS PETITION
In his petition for discretionary review, the petitioner Charles Anthony
Green files four grounds for discretionary review into the Court of Criminal
Appeals in his petition.
(1)
GROUNDS FOR REVIEW
ONE
The Court of Appeals committed a plain error in failure to observe the conflict
ing stories of fabricated, false allegations by the states witness, demonstrating
the evidence that appellant used a firearm to commit sexual assault was legally
insufficient evidence based on false testimony to support the finding that
he used and exhibited a deadly weapon. (RR5:88-90).
TWO,
The Court of Appeals applied only a prejudice approach to the sufficiency of the
evidence in adopting against the rules of evidence false hearsay sexual assault
allegations when the testimony by the states witness Dawn Johnson clearly demon
strated contradicting erroneous false sexual assault allegations. (RR5:90-117).
THREE
The Court of Appeals failed to observe the events alleged as sexual assault and
her identification of the defendant Green was with the intent to deceive the
Court that she did not know the defendant Green, when she knew the defendant
Green personally from prior sexual agreement's in a consentual sex agreement
between the two that turned a drug deal to go bad for payment, was a plain
errory that was obvious,. (RR5:92) (Compare: RR5:102).
FOUR
The Court of Appeals erroered by failing to find the relevant fact's, the sexual
incounter was consentual. The Court of Appeals failed to apply the law to the fact's
the firearm allegations was insufficient to support a finding of use and exhibited.
"Deadly Weapon" means a firearm, or anything manifestly designed, made, or
adopted for the purpose of inflicting death or causing serious bodily injury.
In this case, the states witness made no mention that she felt her life was
ever put in danger of serious body injury, or death. (RR5:88-104).
(2)
ARGUMENT
In this case of Charles Anthony Green, petitioner the Court of Criminal Appeals
should grant review; because the Court of Appeals has decided an important
question of State and Federal law in a way that conflicts with the applicable
decisions of the Court of Criminal Appeals, and The Supreme Court of the United
States. Tex.R App. Proc. 66.3(c). That requires for the Court of Criminal Appeals
to exercise its judicial power, review the record ""on it's own motion", and exer
cise the Court of Criminal Appeals power of supervision 66.3(f)•
LESSOR INCLUDED OFFENSE
CODE OF CRIM. PROC §37.09
At best, the petitioner Charles A. Green should have only been charged with the
offense of prostitution: PENAL CODE §43.01 43.02(a)(2)(b).
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a
fee; or
(2) solicits another in a public place to engage with him in sexual conduct'
for hire.
(b) An offense is established under Subsection (a)(1) whether the actor is to
receive or pay a fee.
An offense is established under Subsection (a)(2) whether the actor solic
its a person to hire him or offers to hire the person solicited.
The Court of Criminal Appeals held in: MATTIAS v. STATE, 731 SW.2d 936, 937
(Tex.Crim.App. 1987), "A person may knowingly offer to engage in or agree to en
gage in sexual conduct for a fee and commit an offense under §43.02(a)(1).—
without have intent to actually consummate the sexual conduct. [l]ntent to con
summate an offer or agreement to engage in sexual conduct is not an element of
the offense of prosecution under §43.02(a)(1).
In addition, the petitioner Green further argues that his counsel on direct
appeal was ineffective "Constructively" denying him counsel on direct appeal,
U.S. v. CRONIC, 104 S.Ct. 2039, (1984) in addressing the Court of Appeals with
a issue of guilt; citing PENAL CODE §22.011(f); alleging a sexual assault as a
second degree felony under PENAL CODE §12.32.
(3)
Citing PENAL CODE §12.32 FIRST DEGREE FELONY PUNISHMENT was out of place, an
prejudicial to encourage the Court of Appeals to affirm his conviction informing
the Court of Appeals of a "matter of defense", and §12.33. BANKS v. REYNOLDS,
54 F.3d 1508, 1515-16 (10th.Cir. 1995). However, the petitioner Green can not
raise his ineffective assistance of counsel claims on direct appeal because the
record is not developed to raise ineffective assistance claims. THOMPSON v. STATE,
.9 SW.3d 808, 813-15 (Tex.Crim.App. 1999).
ISSUE ONE
PLAIN ERROR
The Court of Appeals failed to observe the conflicting "fabricated false"
stories by the states witness Dawn Johnson throughout her testimony at trial, was
a obvious plain error on record. U.S. v. OLANO, 507 U.S. 725, 733-34 (1993).
A Court of Appeals can correct an error not raised at trial only if there is a
plain error that effects substantial rights. U.S. v. OLANO, 507 U.S. 725, 732
(1993); U.S. v. TUCKER, 345 F. 3d 320, 334 (5th. Cir. 2003). The contemporaneous
rule applies to claims of improper admission or exclusion of evidence. U.S. v.
STOVER, 329 F.3d 859, 868 (D.C Cir. 2003).
A simuliar case occurred in: OLDEN v. KENTUCKY, 109 S.Ct. 480, (1988). In the
case of Olden, the petitioner was convicted of sodomy, (sexual assault), the
States witness Starla Matthews made a false complaint of sexual assault to pro
tect her dignity, from other's finding out that she had consentual sex with a
black man, where as here petitioner Charles Anthony Green in this case is a
"black male", and Dawn Johnson is a white female, in Green's argument a pro
stitute with a drug addiction. In Olden, Matthews and Bill Russell were both
married to and living with other people at the time of the incident, they were
apparently involved in an extramarital relationship. By the time of trial the
two were living together, having separated from thier respective spouses.
The petitioner's theory of the case was that matthews concocted the rape story
to protect her relationship with Russell, who would have grown suspicious upon
(4)
seeing her disembark from Harris car. In order to demonstrate Matthews motive to
lie, it was crucial, petitioner contended, that he be allowed to introduce evidence
e of Matthews and Russel's current cohabitation. Over petitioner's vehement object
ions, the trial court nonetheless granted the prosecutor's motion in limine to
keep all evidence of Matthew's and Russell's living arrangement from the jury.
Moreover, when the defense attempted to cross-examine Matthews about her living
arrangements, after she had claimed during direct examination that she was living
with her mother, the trial court sustained the prosecutor's objection.
Court
The reversed Oldens conviction based on the fact's that he was denied his right
to cross-examine the witness Matthews about her relationship with Harris , and
more, that gave her reason to fabricate, and lie to make a false claim of sexual
assault. OLDEN v. KENTUCKY, 109 S.Ct. 480, 484-86, (1986).
Here, in the case of Green, Johnson's testimony was central, crucial to the
prosecutor's case. Her story directly contradicted by that of the petioner Green.
Obvious on record, the states witness Dawn Johnson alledged that she was
at O'Reilly's Auto Parts store to pick up oil and related supplies so her father
could change the oil in her car. (RR5:82-83), located in Tarrant County. (RR5:84).
In this case of Green, the O'Reilly's Auto Parts store is in a location large
shopping area with large crowds of customer's daily at the busy part of the day
3:00pm., ["obvious in plain view"] to all part[s] of the area in sight of public
view. O'Reilly's Auto Parts store is very large with a constant busy revolving
door store consistent and constantly with customer's in, and out of the store
in public view, and the surrounding store[s] customer's in the busy parking
lot under the hood's of their automobiles, or inspecting a needed part to put
on their automobile with employees assistance in and outside the O'Reilly's
with the part's they may need, most obvious is the store itself with large
"showroom" window's 6-to-8 feet height, and wide, with employee's assisting the
customer's in and outside both with clear and obvious "public view" of the
parking lot in plain and obvious view, where Johnson alledged the offense had to
(5)
begin to occur, and the fact's in front of a large crowd of people of every
body in the store, and out of the store in the large shopping, and parking
lot area, (RR5:84-88). It would be very difficult for a man in a mask, (stocking
mask) to not "obviously" be seen, and during by the customer's at the busiest
time of the day 3:00pm by the customers in and around the store, and the employeee's.
(RR5:90-94). Yet alone, had Johnson felt that her alledged attacker would
have attacked her, "Johnson's Scream" would have drawn attention. (RR5:88.96).
A masked man walking in a public view with customer's all around is impossible
without being noticed, and to alert the police. (RR5:88-90).. Then there after
driving in public with a mask on his face in "plain view" around 3:00pm. (RR5:92).
What should be the most "alarming" to the Court of Appeals, is that the states
witness Johnson alledged that her assailant had on a see through mask (stocking
cap) mesh, pulled it off of him, and put it on her, Johnson. (RR5:92-93).
Therefore, providing a window of opportunity for identification. (Id.RR5:92.102).
Had that the Court of Appeals observed the states witness demeanor on paper
in the record of her testimony, and all of the states witness contradicting
events, and false occurrances, the Court of Appeals would have found the alleg-
gtion's by the states witness Dawn Johnson was far from the truth, and reversed
the appellant Charles Green conviction with the instructions of acquittal,
DEMONSTRATING THE STATES WITNESS Johnson's allegation's were fabricated hearsay.
That did not meet the Excited Uttterance. Hearsay Exception. Texas and Federal
Rules of Evidence 803(2). APOLINAR v. STATE, 155 SW.3d 184, 186-87 (Tex.Crim.App.
2005).
Therefore, the Court of Appeals could not have found the relevant fact's
raised in the appeal that the appellant Green used or exhibited a gun in the
single ground by appellate counsel on direct appeal. The Court of Criminal
Appeals should reverse and remand back to the court of Appeals for a proper
sufficiency of the evidence review. JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979).
(6)
ISSUE TWO
The Court of Appeals applied only a prejudice approach to the sufficiency of
the evidence in adopting against the rules of evidence false hearsay sexual
assault allegations when the testimony by the states witness Dawn Johnson clearly
demonstrates contradicting erroneous false sexual assault allegations. (RR5:90-
117).
In MALIK v. STATS, 953 SW.2d 234, 239-40 (Tex.Crim.App. 1997), the court
held:
"No longer shall sufficiency of the evidence be measured by the jury charge
actually given. [M]easuring by the indictment is an inadequate substitute be
cause some important issues relating to sufficiency—e.g. (in this case of
Green sexual assault) the law of transferred intent—are not contained in
the indictment. [Sufficiency of the evidence should be measured by the
.elements of the offense as defined by the hypotheticall'y correct jury charge
for the case. Such a charge would be one that accurately sets out the
law, is authorized by the indictment, does not necessarily increase the
States burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the de-
fendent was tried. [T]he standard we formulate today ensures that a judgment
of acquittall is reserved for those situations in which there is an actual
failure in the State's proof, of the crime rather than a mere error in the
jury charge submitted, see also MIDENCE v. STATE, 108 SW.3d 564, 565 (Tex.
App. Houston [14th Dist] 2003).
The standard for reviewing sufficiency of the evidence is whether any rational
trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979). When performing
an evidentiary sufficiency review, the appellate court may not re-evaluate
the weight and credibility of the vidence and substitute its judgment for that
of the jury.
The petitioner Green consistently has argued he is innocent, the sexual assault
incounter between Green and Dawn Johnson was [consentual], Johnson payment
for sexual intercoarse was to be paid in with "drug's, a controlled substance".
(7)
When disagreement came between petitioner Green, and Green decided not to
pay Johnson because of her (Johnson) intent to deceive Green for more drug's then
bargained for for sex, the states witness Dawn Johnson then became upset, and
disapointed, turned to wrongful deceptive act's to commit perjury, harm Green
by fabricating a false erroneous sexual assault offense against the defendant
Green he did not commit, with the end result's to cause a wrongful conviction
against the petitioner Green, when the sexual encounter was consentual. REDMOND
v. KINGSTON, 240 F.3d 590 (7th.Cir. 2001). On review, the court of Criminal
Appeals will observe conflicting stories by the states witness Dawn Johnson.
(RR5:88-95)., and also observe the inconsistences in the testimony of the states
witness Johnson in her allegation's of a gun, and of identification of petitioner
Green. The Court of Criminal Appeals will also review on record the testimony
of the states witness Johnson, (on record) did not testify that her life was
ever put in danger, or risk of serious bodily injury or death. COLEMAN v. STATE,
145 SW.3d 649, 652 (Tex.Crim.App. 2004}, to support a deadly weapon finding of
use and exhibited. (RR5:88-123). This should have been observed that the test
imony of Dawn Johnson falls into the hearsay catagory of: Texas and Federal Rules
of Evidence 803(2), Utterance exceptional rule to hearsay.
At"no time did Johnson express pain, or in a state of shock from emotional
stress, yes there were sex, at trial Johnson testified comfortable, relaxed with
only a thought to lie and fabricate her erroneous sexual assault complaint.
The court of Criminal appeals must apply the hearsay exception, the court
of Criminal Appeals when then find that the Court of Appeals erred, on the
sufficiency of review. CLEWIS v. STATE, 922 SW.2d 126 (Tex.Crim.App. 1996), and
reverse his conviction.
(8)
ISSUE THREE
The Court of Appeals failed to observe the events alleged as sexual assault
and her identification of the defendant Green was with the intent to deceive the
Court that she did not know the defendant Green, when she knew the defendant
Green personally from prior sexual agreement's in a consentual sex agreement
between the two that turned a drug deal to go bad for payment, was a plain error,
that was obvious. (RR5:92). (Compare: RR5:102).
The petitioner Charles A. Green does not argue the issue of having sex with
with the .states witness Dawn Johnson because he did, but the sexual encounter
was consentual, and the sexual allegations were fabricated, erroneous and false
WITH THE INTENT TO CAUSE HARM TO Green. Before having consentual sex with
the states witness Dawn Johnson, a agreement was made between the two for Johnson
to receive drugs, a controlled substance in return for her payment for sex.
The petitioner Green informs the Court this was not the first consentual
sexual encounter with the states witness Dawn Johnson for the payment to be
in drug's. The petitioner Green and Johnson have had consentual sex on other
occasions for the same paayment of drugs, a controlled substance, in return
with Dawn Johnson. Prior to having sex, and the sexual assault allegation's,
Johnson and Green were friend's calling and dating each other. This would
have been discovered h^d thgd: this been addressed on cross-examination. Although
addressed in issue two, when Johnson reneged on the initial agreement of the
sexual act, the petitioner Green refused to pay Johnson on her demand of drugs.
Johnson knew the petitioner Green personally, and was aware that as in the
previous sexual encounters with Green they never used condums, therefore, DNA
evidence would be present, freely before their disagreement. Johnson used the
evidence of DNA to harm Green. In a new trial, the defendant Green can request
for an expert on drugs, an error prior trial counsel had failed to investigate
and do. MILLER v. WA1NWRIGHT, 798 F.2d 426 (11th.Cir. 1986). The Court of Crim
inal Appeals must observe the demeanor of false intent in the testimony of the
states witness Dawn Johnson for clear error, deception at trial, to mislead the
court and jury as if she was a victim, but instead a participant accomplish
(9)
witness as a matter of law. Code of Crim.. Proc. 38.14. see (RR5:88-123).
The court of Criminal Appeals must review the record on its own motion, the
Court of Criminal Appeals will find the truth that Dawn Johnson lied and fabricated
a erroneous sexual assault against the petitioner Green.
For all practical purposes, the petitioner Green request that this court
conduct a evidentiary hearing on its own motion, as well as review the records
on its own motion the Court of Criminal Appeals will find true, a sexual inter
course occurred, but the sexual intercourse was consentuai..• OLDEN v.-KENTUCKY,
109 S.Ct. 480 (1988).
ISSUE FOUR
The Court of Appeals errored by failing to find the relevant facts, the sexual
incounter was consentual. The Court of Appeals failed to apply the law to the
fact's the firearm allegations was insufficient to support a finding of use
and exhibited. "Deadly Weapon" means a firearm, or anything manifestly designed,
made or adopted for the purpose of .i.nflicting death or causing serious bodily
injury. In this case, the states witness made no mention that she felt her
life was ever put in danger of serious body injury, or death. (RR5:88-104).
Penal Code §1.07(a)(17)(A). In ROBERTSON v. STATE, 163 SW.3d 730, 732 (Tex.Crim.
App. 2005). Under the definition in §1.07(a)(17)(A) "an object's physical
characteristics determine whether a weapon is deadly by design. Moreover, an
object can be a deadly weapon by 'design' only if it has no obvious purpose
apart from causing death or serious bodily injury.
At trial, the states witness testified that that her assailant put a mask
over her eyes. (RK5:9596) She prior testified that her assailant never said
he had a gun. (RR5:91) The Court of Appeals errored.
ON RECORD IN THE COURT OF APPEALS OPINION, THE COURT SAID THAT
JOHNSON TOLD THE POLICE THAT THE APPELLANT HAD A .357. This is
own [Page 2 of the court of Appeals opinion].
This is a error, a plain and obvious error on the record that
fiSieneffected the substanial rights of the defendant Charles A.
Geen. U.S. v. OLANO, 507 U.S. 725, 733-34 (1993).
(10)
The court of Criminal Appeals should exercise its power when this plain
and obvious error has effected the petioner Green, that has denied him his
right to receive a fair trial. The matter of a gun, a deadly weapon is
, and was a very important matter in this case of Charles A. Geen.
At no time during trial, the witness Dawn Johnson, never testified that
her life was in danger. And never testified to any supporting fact's to
sustain a sexual assault offense.
The evidence is insufficient to have found him guilty of sexual assault/
just as much, the evidence is insufficient to haare found him guilty of using
and exhibiting a deadly weapon. JACKSON v. VIRGINIA, 99 S.Ct. 2781, (1979).
PRAYER
The petitioner Charles A. Green prays that the Honorable Court of" Criminal
Appeals will reverse his conviction, and order him a new trial.
September 2, 2015. RESPECTFULLY SUBMITTED
CHARLES ANTHONY GREEN
#1959504 WYNNE UNIT
810 FM 2821
HUNTSV1LLE, TEXAS.
77349.
INMATES DECLARATION
I, Charles A. Green, Id.#1959504, hereby swear under the penalty of perjury
that the forgoing information is true, and correct.
Charles Anthony Green
CERTIFICATE OF SERVICE
I, Charles A. Green, hereby certify, that a true and correct copy of the
forgoing information has been forwarded to the Tarrant County District Attorneys
Office in Tarrant County by U.S. Mail.
CHARLES ANTHONY GREEN
(11)
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00426-CR
CHARLES ANTHONY GREEN APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1303703D
OPINION
A jury convicted Appellant Charles Anthony Green of aggravated sexual
assault with a deadly weapon. The trial court sentenced him to fifty years'
confinement. In his sole point, Appellant challenges the sufficiency of the
evidence of the use or exhibition of a deadly weapon. Because the evidence is
sufficient to allow a jury to conclude beyond a reasonable doubt that Appellant
did use and exhibit a deadly weapon, specifically a firearm, in the commission of
the offense, we affirm the trial court's judgment.
Brief Facts
On February 12, 2004, at approximately 3:00 p.m., Dawn Johnson (a
pseudonym) went to an O'Reilly's Auto Parts store to buy car supplies in
Pantego, Texas. When she left the store, Johnson noticed Appellant sitting at
the edge of the building near her vehicle. His presence made her nervous, so
she put down her bags to get her keys out of her purse. As she found her keys,
Appellant came up behind her and stated that he needed a ride. Johnson felt a
metal object against her mid-back; she believed that the object was a gun.
Johnson told Appellant that he could take her car, but he did not let her go.
Instead, Appellant shoved her through the driver's seat into the passenger seat
of her car. Appellant got into the driver's seat and drove off. As Appellant was
driving, Johnson considered jumping out of the car but decided not to for fear of
being shot.
While he was driving, Appellant put his ski cap on Johnson, covering her
eyes. He eventually pulled the car over into an alley. He came over to the
passenger side of the car, and Johnson began screaming. Appellant told
Johnson that he would not hurt her. But when she continued screaming, he
placed what felt like the barrel of a gun to her head. Johnson told the police that
Appellant had told her that the object was a ".357." Appellant raped Johnson and
then let her leave.
Sufficiency of the Evidence
Appellant argues that because Johnson saw no firearm and the police
found no firearm, the evidence is insufficient to support the jury's deadly weapon
finding. The standard for reviewing sufficiency of the evidence is whether any
rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt.1 The evidence is examined in the light most
favorable to the jury's verdict.2 This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts."3 When performing an evidentiary sufficiency review, the
appellate court may not re-evaluate the weight and credibility of the evidence and
substitute its judgment for that of the jury.4 The jury determines facts proven and
the weight and credibility to be given to testimony, and it exclusively possesses
the authority to reconcile conflicts.5 The jury may believe all, part, or none of a
1Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2788-89 (1979);
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert, denied, 511
U.S. 1046(1994).
2Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.
zJackson, 443 U.S. at 319, 99 S. Ct. at 2789.
4lsassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
5Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000), cert, denied, 532 U.S. 944 (2001).
witness's testimony.6 The appellate court must presume that the jury resolved
any conflicting inferences in favor ofthe verdict and defer to that resolution.7
In a sufficiency review, "[circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone
can be sufficient to establish guilt."8
To sustain a deadly weapon finding, the evidence must show that the
object satisfies the definition of the term "deadly weapon," that the deadly
weapon was used during the offense, and that someone other than the
defendant was thereby placed in danger.9 Appellant argues that the evidence is
insufficient to prove that he "used" a deadly weapon because Johnson never saw
his gun and that therefore the evidence sufficed to prove only sexual assault
rather than aggravated sexual assault. The State argues that the evidence is
sufficient to support the deadly weapon finding and therefore the aggravated
sexual assault conviction because of the following:
• Johnson unequivocally testified that her encounter with
Appellant began when she felt Appellant stick a gun in her
back.
^Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
7Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise v. State, 364 S.W.3d
900, 903 (Tex. Crim. App. 2012).
8Hooperv. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
gBristerv. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
• Johnson was "100% sure" she felt Appellant put the barrel of
a gun against her head.
• Johnson submitted to Appellant because she believed he
would shoot her if she resisted.
• As Appellant prepared to rape Johnson, he asked if she knew
what kind of gun he was holding against her head and then
told her it was a .357. [Citations omitted.]
The State is correct. Johnson's testimony that she felt a gun barrel
pressed against her and that Appellant told her that it was a .357 is sufficient to
support the jury's deadly weapon finding.10
Conclusion
We therefore overrule Appellant's sole point on appeal and affirm the trial
court's judgment.
/s/ Lee Ann Dauphinot
LEEANNDAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
PUBLISH
DELIVERED: June 4, 2015
10See Woods v. State, 653 S.W.2d 1,4 (Tex. Crim. App. 1982).
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