No. _____________

________________________________________________________

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_________________________________________________________ GARY MARTINS Defendant

- Appellant

VS.

THE STATE OF TEXAS Plaintiff

– State

_________________________________________________________

Review Sought from the Court of Appeals Cause No. 14

- 14

- 00688

- CR

_________________________________________________________

Conviction in the 176 th Judicial District Court

Harris County, Texas Cau se No. 1371501

________________________________________________________ APPELLANT ’S PETITION FOR DISCRETIONARY REVIEW

_________________________________________________________

ORAL ARGUMENT REQUESTED

PENNY WYM Y CZAK

- WHITE TBN 22100350 723 Main St. Ste. 8 0 8 Houston, Texas 77002 713/225

- 5296 ( d irect) 713/227

- 5290 ( f

ax) pennywhitetx@aol.com

ATTORNEY FOR APPELLANT PD-1485-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 11/16/2015 12:17:24 PM Accepted 11/17/2015 1:47:42 PM

ABEL ACOSTA CLERK1 IDENTITIES OF PARTIES AND COUNSEL Appellant herein states that the names of all parties and counsel to this
appeal are:

Presiding Judge:

The Honorable Stacey Bond
Representing the State:
Jamie Felicia (at trial) Allen Curry (on appeal) Harris County District Attorney’s Office 1201 Franklin Street 5 th Floor Houston, Texas 77002
Representing A

ppellant :

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

- White (on appeal) Attorney at Law 723 Main St. Ste. 80 8 Houston, Texas 77002
The appellant : Gary Martins2 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL

................................ ..................... 1

TABLE OF CONTENTS

................................ ................................ ........................ 2

INDEX OF AUTHORITIES

................................ ................................ ................... 3

STATEMENT REGARDING ORAL ARGUMENT

................................ ........... 4

STATEMENT OF PROCEDURAL HISTORY

................................ ................... 4

GROUND FOR REVIEW

................................ ................................ ....................... 5

ARGUMENT

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

................................ . 6

PRAYER FOR RELIEF

................................ ................................ .......................... 8

CERTIFICATE OF SERVICE

................................ ................................ .............. 9

CERTIFICATE OF COMPLIANCE

................................ ................................ .... 9

APPENDIX

................................ ................................ ................................ ............. 10 Opinion by Court of Appeals Dated October 15, 2015

................................ ........ 103 INDEX OF AUTHORITIES

CASES Koah v. State , 604 S.W.2d 156 (Tex. Crim. App. 1980)

................................ ............................... 6 Whatley v. State , 445 S.W.3d 159 (Tex. Crim. App. 2014)

................................ ............................... 7

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

................................ .. 6 Tex. Penal Code Ann. § 6.03(a) (West 2011)

................................ ............................ 6 Tex. Penal Code Ann. § 6.03(b) (West 2011)

................................ ........................... 6

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

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

................................ ................................ .............................. 74 STATEMENT REGARDING ORAL ARGUMENT This appeal presents novel issues of fact and law. Appellant believes that
oral argument will assist the Court in reach a fair and just decision.

STATEMEN T OF THE CASE This appeal lies from Appellant’s jury trial and felony conviction

.

STATEMENT OF PROCEDURAL HISTORY Appellant was charged with aggravated sexual assault of a child, alleged to
have occurred on September 7, 2012. (C.R. 21). Trial before a jur y commenced on
August 13, 2014. (C.R. 183). Appellant entered a plea of not guilty. (C.R. 183).
The jury was authorized to convict Appellant for aggravated sexual assault of a
child, or indecency with a child. (C.R. 91). The jury found Appellant guilty of
aggravated sexual assault of a child. (C.R. 98). The trial court assessed punishment
at thirteen years confinement. (C.R. 102). Judgment was entered on August 15,
2014. (C.R. 102). No motion for new trial was filed. Notice of appeal was filed on
August 15, 2014. (C.R. 105). The court of appeals affirmed Appellant’s conviction
on October 15, 2015, in a memorandum opinion. No motion for rehearing was

filed.5 GROUND FOR REVIEW Appellant’s Sole Ground f or Review : The Court of Appeals Erred in Finding the Evi dence Sufficient t o Support Appellant’s Conviction for Aggravated Sexual Assault of a Child , Where the Evidence Failed to Show that Appellant Intentionally or Knowingly Engaged in the Alleged Conduct A gainst the Complainant.6 ARGUMENT Appellant’s Sole G round for Review : The Court of Appeals Erred in Finding the Evidence Sufficient t o Support Appellant’s Conviction for Aggravated Sexual Assault of a Child , Where the Evidence Failed to Show that Appellant Intentionally or Knowingly Engaged in the Alleged C onduct A gainst the Complainant.
The indictment returned against Appellant alleged that he placed his finger
in the female sexual organ of the complainant. (C.R. 21). The complainant testified
that Appellant was asleep at the time of the alleged offense. ( 3 R.R. 153, 155). Her
testimony is corroborated by Sandra Sanchez, the nurse who testified that the
complainant reported to her that Appellant was asleep when he touched her. (3
R.R. 63). The fact that Appellant was asleep was further shown by his wife,

Je anette Martins, who stated that Appellant appeared to be sleeping when she
entered the master bedroom. (2 R.R. 152).

The State wa s required to prove that Appellant acted intentionally or
knowingly in placing his finger in the sexual organ of the complaina nt . Tex. Penal
Code Ann. § 22.021(a)(1)(B) (West Supp. 2014). A person acts intentionally with
respect to the nature of his conduct when it is his conscious objective to engage in
the conduct. Tex. Penal Code Ann. § 6.03(a) (West 201 1 ) ; Koah v. State , 604
S.W.2d 156, 160 n.1 (Tex. Crim. App. 1980) . A person acts knowingly with
respect to the nature of his conduct when he is aware of t he nature of his conduct.
Tex. Penal Code Ann. § 6.03(b) (West 2011) ; Koah v. State , 604 S.W.2d at 1607

n.1. It stands to reason that if Appellant w a s asleep at the time of the alleged
conduct, he could not have acted intentionally or knowingly within the meaning of

the Penal Code.
This Court should grant this petition on the grounds that the Court of
Appeals has decided an important question of state law. Tex. R. App. P. 66.3(b) . In
addition, this Court should grant this petition on the grounds that the Court of
Appeals appears to have misconstrued a statute. Rule 66.3(d) . This Court should
decide whether the undisputed evidence that Appellant was acting in his sleep
would allow a rational trier of fact to have found beyond a reasonable that he acted
intentionally or knowingly.
The court of appeals relied on this Court’s decision in Whatley v. State , 445
S.W.3d 159, 166

- 67 (Tex. Crim. App. 2014) , which upheld an aggravated sexual
assault conviction despite evidence that the defendant was s ound asleep during the
commission of the alleged underlying conduct . However, the issue in Whatley was

framed in terms of whether the defendant had acted voluntarily

. 445 S.W.3d at
160, 167. This C ourt even noted that “[t]his is a distinct inquiry from the knowing

or intentional mens rea requirement established by the provisions of §
22.021(a)(1)(B).” 445 S.W.3d at 166. This Court should grant this petition, and

decide whether Whatley is controlling precedent in Appellant’s appeal.8 PRAYER FOR RELIEF Appellant prays this Honorable Court to grant this petition, and t o summarily reverse the judgment of the court of appeals and to enter a judgment of
acquittal. In the alternative, Petitioner prays this Court to grant this petition and

order full briefs filed on the merits.

Respectfully submitted,

Penny Wymycz ak

- White PENNY WYMYCZAK

- WHITE TBN 22100350 723 Main St. Ste. 808 Houston, Texas 77002 713/225

- 5296 (direct) 713/227

- 5290 (fax) pennywhitetx@aol.com

ATTORNEY FOR APPELLANT9 CERTIFICATE OF SERVI CE I hereby certify that on this 16th day of November , 2015, a true and correct
copy of the forgoing motion for substitution of counsel was served by fax and
email to Alan Curry, (713) 755

- 5809 (F) , Alan.Curry@da o.hc.tx , and to the State’s
Prosecuting Attorney, (512) 463

- 5724 (F), information@spa.texas.gov.

Penny Wymyczak

- White PENNY WYMYCZAK

- WHITE

CERTIFICATE OF COMPLIANCE I hereby certify that under the provisions and restrictions of Rule s 9.4(i)(1)
& 9.4(i)(2)(D), Texas Rules of Appellate Procedure, the foregoing petition for
discretionary review consists of 508 words.

Penny Wymyczak

- White PENNY WYMYCZAK

- WHITE10 APPENDIX Opinion by Court of Appeals D ated October 15, 2015Affirmed and Memorandum Opinion filed October 15 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00688

- CR

GARY MARTINS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 176th District Court

Harris County, Texas Trial Court Cause No . 1371501

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

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

1 Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011 ).2

felt “sick, like something was wrong

. ” The home was dark and the television was turned
off . This was unusual because appellant routinely fell asleep on the couch while watching television . Earlier that night, Jenetta had placed J.S. , her eight

- year
- old niece, in the master bedroom to sleep. When Jenetta walked into the bedroom, she saw appellant and J.S. lying next to each other in the bed. Both appeared to be asleep.
Jenetta woke J

. S. and carried he r to the living room, where she noticed that her shorts
were folded down in the back. Jenetta asked J.S. if appellant had touched her. J.S. said
no. Jenetta asked J.S. again if appellant had touched her. J.S. asked if Jenetta would be
mad at her and wh ether Jenetta would tell appellant what J.S. said next. Jenetta responded that she would not . J.S. then told Jenetta that appellant had touched her. J.S. indicated that appellant rubbed her buttocks and then demonstrated with her finger how appellant tou ched her between her legs and moved his finger back and forth.

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

corre sponded with the female sexual organ.

After J.S. made her outcry to Jenetta, she was taken to the hospital for an exam by a forensic nurse. The nurse, Sandra Sanchez, testified at trial that , during the exam , she found a 0.4 centimeter by 0.2 centimeter bruise on J.S. ’s hymen

. A photo depicting the
bruise was entered into evidence

. As part of the exam, J.S ’s underwear was collected as evidence and tested by personnel at the Harris County Institute of Forensic Science . A
stain on the underwear returned a presumptive positive for blood

. M ale DNA detected inside the underwear was consistent with appellant’s DNA profile. Two weeks after the assault, Lisa Holcomb, a forensic interviewer at the Children’s Assessment Center in3

Houston , interviewed J.S . Holc omb testified at trial that J.S. disclosed the same abuse to her during the interview. The jury convicted appellant of aggravated sexual assault of a child. Appellant’s sole argument on appeal is that the evidence presented at trial was insufficient to

s upport his conviction because the State failed to prove that he acted intentionally or knowingly in penetratin g the female sexual organ of J.S

. Analysis In reviewing the legal sufficiency of the evidence, we must consider “ all of the evidence in the light most favorable to the verdict and determine whether , based on that evidence and reasonable inferences therefrom, a rational fact finder c ould have found
the essential elements of the crime beyond a reasonable doubt. ” Gear v. State , 340 S.W.3d 743, 746 (T ex. Crim. App. 2011). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of a child by

any means. Tex. Penal Code Ann. § 22.021 (a) (1)(B)(i) (West 2011 )

. Appellant does not argue that he did not penetrate the female sexual organ of J.S. Rather, he asserts that the evidence presented at trial was insufficient to show that he acted intentionally or knowingly. A person acts intentionally “when it is his conscious objective or desire to

eng age in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a) (West
2011 )

. A person acts knowingly “ when he is aware that h is conduct is reasonably
certain to cause the result.” Id. § 6.03(b). Appellant claims that no rational jury could
have found that he acted with either culpable mental state because the evidence at trial shows that he was asleep at the time that he penetrated the female sexual organ of J.S

. J.S. testified that she repeatedly told appellant to stop touching her, bu t that he continued without regard to her numerous protests. J.S. testified that she believed that appellant was unable to stop because he was asleep. Jenetta testified that appellant appeared to be sleeping when she entered the bedroom to find appellant and J.S. in bed4

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

The t ask of evaluating testimony and drawing reasonable inf erences from the facts belongs exclusive ly to the jury. Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not substitute our judgment for the jury’s when reviewing the evidentiary sufficiency of th e verdict that they rendered. Johnson v. State , 421 S.W.3d 893, 89 6 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). We only determine whether any rational trier of fact could have reached the same conclusion after hearing the evidence
before them. Gear , 340 S.W.3d at 746.

T he jury weighed all of the evidence , forensic and non

- forensic. From the evidence, the jury reasonably could have inferred that, in spite of the testimony of J.S. to the contrary, appellant was not actually asleep and acted either in tentionally or knowingly in penetrating the female sexual organ of J.S

. J.S. was eight years old when appellant assaulted her and ten years old when she testified at trial. The forensic
examiner testified that J.S. also appeared to be developmentally del ayed . Both age and impaired development could have affected her ability to understand whether appellant was really unable to control his actions or whether he was just feigning sleep. J.S. slept over at appellant’s home often and had a close relationship with him and his wife. It is
rational to infer that such a child would have honestly believed her own mistaken testimony and trusted that appellant was not acting intentionally to hurt her and was
instead ignoring her protests because he was asleep

. See Whatley v. State , 445 S.W.3d
159 , 166

– 67 (Tex. Crim. App. 2014) (aggravated sexual assault conviction upheld despite child’s forensic interview in which she seemed convinced that appellant, her stepfather, was asleep when he touched her).

T he jury also co nsidered forensic evidence that could have rationally supported a5

finding of intentional or knowing action. J.S. suffered an injury to her hymen

— one which the forensic nurse testified was un commonly severe for the digital penetration
that J.S. reported be ing victim to. An injury so deep within the female sexual organ

c ould have give n rise to a reasonable inference of intentional penetration by the appellant. Similarly, a rational jury could have reasonably inferred that appellant’s
actions were intention al or knowing after hearing that male DNA matching appellant’s genetic profile was found inside the underwear of J.S

. Considering all of the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have convict ed appellant on the evidence presented to the jury. Therefore, the evidence is legally sufficient to support appellant’s conviction for aggravated sexual assault of a child

. Id. at 167. Having overruled appellant’s sole issue, we affirm the trial court’ s judgment

.

/s/ Marc W. Brown Justice

Panel consists of Justices Boyce, Busby, and Brown. Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).