Green, Darren Dwyone

Case Information

299.15

RECEIVED IN COURT OF CRIMINAL APPEALS

MAY 282015 No. 05-13-00218-CR

Abel Acosta, Clerk

TW THe Count of Afeals For The Fifth District of Texas AT Dallas

| Dassen Duyone Green, | | | :--: | :--: | | | A ppellant | | | FILED IN | | | COURT OF CRIMINAL APPEALS | | V. | MAY 282015 |

The State of Texas Appellee

On Appeal from the Criminal District count No. 4 of Dallas County, Texas In cause No. 811-62506-K

Petition for Discretionary Review

Dassen Duyone Green 10es * 01890431 Allan B. Polvasky Unit 3872 8m 350 South Wisigstein, Texas 77351

List of Parties Aprellant Darren Duyone Green Aprelliee The state of Texas Depease Roussel at trial Brenda Voajoe 4144 North Central Expressway suite 650 Dallas, Texas 9504 STATE'S ATTOEMOY At Trial Shawakeeda Houston-Martia, Shegultra Kelly Dallas County District Attorney's office 1.33 N. RheeSaat Bled., AB-19

Dallas, Texas 95207-4399 Aprellant's APEeAL Darren D. Green STATE'S ATTOEMOY ON APEeal Susan Hamties Loe her designated representative) Dallas County District Attorney's office Frank Crowley Counts Buildings 133 N. RheeSaat Bled., AB-19 Dallas, Texas 95209-4399

Memorandum Opronom sisned By Justices Lary, Brown, and Whitehill Oprnon By Justice Brown

The Court of Appeals Fifth District of Texas at Dallas.

Petition for discretionary review Filed with the Court of Criminal Appeals, Supreme Court Building. P.O. Box 12508, Austin, Texas 38211

Table of Contents

| Number of Authorities | | | :--: | :--: | | Statement of the Case | IV | | I s sive Presented | 1 | | The evidence was insufficient to support the conlletion for continuous sexual abuse because the state failed to prove that durhy a period that was thirty days or more in duration, Appellant committed two or more acts of sexual abuse and sury was deaihed evidence. | 1 | | Statement of Facts | 1 | | Summary of Argument | 1 | | A R oument | $3+4$ | | PRAYOR | 5 | | Police Report | H/H |

INDEX OF AUTHORITIES

Cases

Hoeper v. state, 219 s.w. 329 (Tes. Erim App. 2007)

Statutes Tex. Remal Code Am. p.21.02.

To The Honorable Court of APEEels Comes Now Appellant, Basren Duyone Green, and submits this petition for Discretionary Review on Appell from a conviction Id the Criminal District Court No. 4 of Dallas County Texas, The Honorable Nomintque Collins, presidias,

Statement of the Case Appellant was charged by indietment with intentionally and knowingly, during a period that was thirty or more days in duration, committing two or more acts of sexual abuse against a child younger than Fourteen in violation of Tex. Penal Code Ann. 21.02. (CR/13). After a jury trial, the jury entered a guilty verdict. (CR:82). After a hearing on punishment, the jury assessed punishment at forty years' confinement. (CR:87) The Appell Timely Followed (CR:98)

Issue Presented Point of Esses The evidence was insufficient to support the conviction Contingers sexual abuse because the state failed to prave that curses a period that was thirty day or more in duration, Appellant committed two or more acts of sexual abuse and Appellant didn't give an open plea of guilty.

Summary of Argument the evidence is insufficient to support the conviction because a suy could not have reasonably inferred that the allowed acts of sexual abuse occurred during a period of thirty days of mere in duration.

AAGUMEN In your HEMORANDUM OPINION It sky's that Appellant entered an open plea of guilty. But that's not true I plead not guilty and choose to so to July TRIal. I Also challenged the sufficiency of the evidence, but this is what my Appeal hamves chose to write even after I gave her my points of error. The Court state that S.E. described at least five occasions on which sexual abuse against her was committed but if the Courts would send the enclosed police report she told the Forensic Interviewer that three of those occasions happened the same night, and S.E. say that was the night before I went to Jail 11-28-2011 that was 30st 3 days After thanks, giving. Also as in the Brief filed by my Appeal Attorney, S.E. was unagreement that the surprised incidents of abuse occurred after she and her family moved next door. My trial attorney hired a investigator that the Court payed 1,500 why didn't

he or the state Investigator just so set the lease room the Ajustments? That was something that was kept from the July same as the Medical exam that showed there was nothing out of place on J.E., which if a 282 lb man put his hand inside and force his hand in a eleven years old girl then there should have been, but the July was told there was no medical advidence. As stated in my Appendix brief States are not permitted to draw conclusions based on specification but without seeing the medical record or the video that J.E. made to the forensic Interview how could they find beyond a reasonable doubty if the July was presented all the edaridence they may have knew something other than hearsay and specification, which is prohibited. Hooper V. State, 214 S.W. 3d9 (Tex. Crim App. 2009)

Conserved in the light most favorable to the verdict, the testimony did not permit the 505y to infer beyond a reasonable doubt.

PRAYER

Wherefore, Premises Considered, Appollant pray that this court will reverse the 50d;oment of the trial court and acquit the appellant

Respectfully submitted,

Darren Green TDE5°01840431 Allan B. Polonsky Unit 3812 Ym 350 South Hwayston, TX 712E1

BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant who, after being duly sworn by me, on oath stated: My name is COREY FOREMAN and I am a peace officer of the City of Dallas, Dallas County, Texas. I, the affiant, have good reason and do believe that on or about the 27 day of November 2011, one (name of suspect) DARREN DWYONE GREEN did then and there in the City of Dallas, Dallas County, Texas commit the offense of CONTINUOUS SEXUAL ABUSE OF A YOUNG CHILD a violation of Section 21.02 of the PENAL CODE a FELONY 1

Affiant's belief is based upon the following facts and information which Affiant received from: Affiant's personal investigation of this alleged offense.

F-1162506

A fellow peace officer of the City of Dallas, Dallas County, Texas, who personally participated in the investigation of this alleged offense, providing information to Affiant, and whose information Affiant believes to be credible.

BASED UPON INFORMATION RECEIVED FROM THE COMPLAINANT JAICEONA FINLEY B/F/11 DOB:02/17/2000; IT IS BELIEVED THAT THE SUSPECT DARREN DWYONE GREEN B/M/41 DOB:05/08/70; COMMITTED THE OFFENSE OF CONTINUOUS SEXUAL ABUSE F/1 PENAL CODE 21.02; BEFWEEN-THE-DATES-OF-JUNE-1; 2011 AND-NOVERBER-27; 2011-AT-10850-WALNUT-HILL-EN #111 DALLAS, DALLAS COUNTY, TEXAS AGAINST THE COMPLAINANT.

THE FACTS OF THIS CASE ARE AS FOLLOWS: ON NOVEMBER 28, 2011 REPORTING OFFICERS DISPATCHED TO THE RESIDENCE OF THE COMPLAINANT REGARDING HER BEING SEXUALLY ASSAULTED BY THE SUSPECT, WHO IS HER COUSIN. OFFICERS MET WITH REPORTING PERSON KITTIRATH, WHO IS THE COMPLAINANT'S MOTHER WHO STATED THAT SHE WAS LOOKING AT THE TEXT MESSAGES ON THE COMPLAINANT'S PHONE, WHEN SHE OBSERVED A TEXT SENT BY THE COMPLAINANT TO A JUVENILE FRIEND, WHICH STATED "SHE HAD BEEN RAPED BY HER COUSIN", REFERRING TO THE SUSPECT.

AFTER INTERVIEWING THE REPORTING PERSON, THE COMPLAINANT WAS TAKEN TO THE DALLAS CHILDREN'S ADVOCACY CENTER, WHERE SHE WAS GIVEN A FORENSIC INTERVIEW. DURING THE INTERVIEW, THE COMPLAINANT EXPLAINED THAT ON THE PREVIOUS NIGHT AFTER SHE HAD TAKEN SHOWER, THE SUSPECT CAME OVER TO HER HOUSE AND PLAYED WITH HER LITTLE BROTHER WHILE SHE WAS IN THE BED WITH HER LITTLE BROTHER, THE SUSPECT KNFLT DOWN ON HIS KNEES NEXT TO THE BED, PLACED ONE HAND OVER HER BROTHER'S FACE, AND PLACED HIS OTHER HAND UNDER THE COVERS, LATER PLACING IT INSIDE OF HER PANTIES WHERE HE STUCK HIS FINGER INSIDE OF HER VAGINA. SHE STATED THAT HER MOTHER WAS IN HER BEDROOM AT THE TIME OF THE INCIDENT. SHE WENT ON TO SAY THAT LATER ON IN THE EVENING, WHILE SHE WAS CLEANING THE KITCHEN, THE SUSPECT APPROACHED HER, PUT HER UP AGAINST THE WALL AND FORCED HIS HAND INSIDE OF HER PANTIES.

DURING THE INTERVIEW-WHEN ASKED ABOUT THE FIRST-TIME-THE SUSPECT HAD DONE ANYTHING TO HER, SHE STATED THAT IT STARTED IN THE MONTH OF JUNE OF THIS YEAR, BEFORE SCHOOL STARTED. SHE STATED THAT IT STARTED OUT WITH HIM TELLING HER HOW BEAUTIFUL SHE WAS AND STARTED TOUCHING HER. SHE SAID SHE THOUGH IT WAS WEIRD. SHE WENT ON TO EXPLAIN THAT SHE WENT TO THE SUSPECT'S APARTMENT TO GET SOMETHING TO EAT, WHEN HE TOLD HER TO GO INTO THE LIVING ROOM AND WATCH TELEVISION WHILE HE COOKED. AT SOME POINT, THE SUSPECT WENT INTO THE LIVING ROOM WHERE SHE WAS, AND TOLD HER TO LAY DOWN ON THE COUCH. WHEN SHE SAID NO, HE FORCED HER ON TO THE COUCH AND TRIED TO KISS HER. WHEN SHE SAID "NO", HE FORCED HER TO KISS HIM ON THE CHEEK. AT SOME POINT, THE SUSPECT RUBBED HER ON HER STOMACH, PULLED HER PANTS DOWN AND STARTED TO FONDLE HER VAGINA FROM THE OUTSIDE OF HER PANTIES WITH HIS HAND. THE SUSPECT STOPPED WHEN THE COMPLAINANTS SIBLINGS CAME INTO THE APARTMENT TO EAT. THE COMPLAINANT EXPLAINED THAT THE SUSPECT HAD BEEN FONDLING HER FOR SEVERAL MONTHS. AFTER EACH INCIDENT, HE WOULD APOLOGIZE AND TELL HER NOT TO TELL. THE COMPLAINANT WAS AN ELEVEN YEAR OLD CHILD AT THE TIME OF THIS

AFFIRM; and Opinion Filed February 25, 2015.

In The Court of Appeals Fifth District of Texas at Ballas

No. 05-13-00218-CR

DARREN DWYONE GREEN, Appellant V, THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F11-62506-K

MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Brown Darren Dwyone Green appeals his conviction for the offense of continuous sexual abuse of a child. In a single issue, appellant contends the evidence is insufficient to support the conviction because the State failed to prove he committed the sexual acts in a period of thirty days or more. We affirm the trial court's judgment.

Appellant was indicted for intentionally or knowingly, during a period that was thirty days or more in duration, committing two or more acts of sexual abuse against J.F., a child younger than 14 years of age, by penetration of the female sexual organ by appellant's finger and by contact between appellant's hand and J.F.'s genitals, with the intent to arouse and gratify appellant's sexual desire. See Tex. Penal Code Ann. § 21.02(a) (West Supp. 2014). Appellant entered an open plea of guilty. A jury found appellant guilty and assessed his punishment at forty years' confinement.

In a single point of error, appellant contends the evidence is insufficient to support his conviction. Appellant does not challenge the sufficiency of the evidence to show he committed two or more acts of sexual abuse. His challenge is limited to whether the evidence is sufficient to show the acts were committed during a period of thirty days or more.

When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Temple, 390 S.W.3d at 360 . The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2014); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref'd).

At the time of trial in February 2013, J.F. was twelve years' old and about two weeks away from her thirteenth birthday. She testified that appellant was her father's cousin and she had a "family like" relationship with him. For a few months, J.F., her mom, and her siblings lived in an apartment with appellant and her uncle. They later moved out of that apartment into their own apartment next door. J.F. testified that, at some point, her relationship with appellant changed and he started doing bad things to her. J.F. described at least five occasions on which appellant committed acts of sexual abuse against her. We do not recount the details of the acts as they are familiar to the parties and not necessary to the disposition of this appeal. J.F. testified that she was eleven at the time of the first act and all later acts. She said the first act happened toward the end of July or the beginning of August. J.F. testified the next act occurred "[m]aybe in August." J.F. described another act of sexual abuse that occurred at the

end of September or maybe in October. The next act occurred after Thanksgiving. J.F. described one more act, the last one, that also occurred when she was eleven, but she did not remember exactly when it happened. J.F.'s mother called the police after she read text messages on J.F.'s phone describing to a friend what had happened.

On cross-examination, defense counsel asked J.F. if the first incident occurred when her family was living with appellant or living in their own apartment. J.F. testified that they lived next door. Defense counsel asked if it was true that J.F. did not move next door until October and J.F. replied, "No." On redirect, J.F. testified that the first incident occurred before the school year started, sometime in July or August, and the last incident she remembered was in November. She stated she knew for sure the acts started before she went back to school and ended sometime in November. J.F.'s mother testified that she moved in with appellant and her kids' uncle sometime in June and got her own place in October. A CPS worker testified that she interviewed J.F. on November 28, 2011.

Appellant testified and denied committing any acts of sexual abuse against J.F. Appellant maintains the evidence is insufficient because J.F. was unequivocal that the abuse began after she moved out of appellant's apartment and her mother testified that the move occurred sometime in October. According to appellant, because J.F. testified that the last act was in November, sometime after Thanksgiving, a jury could not have concluded without speculation that the acts of sexual contact were committed over a period of thirty days or more. We disagree. J.F. testified the first act of sexual abuse occurred in July or August and the last act she remembered occurred in November. This testimony alone is sufficient to prove appellant committed the acts of sexual abuse over a period of thirty days or more. While J.F.'s testimony that she lived next door to appellant when the abuse began was inconsistent with her mother's

testimony that they lived with appellant until October, the jury was free to resolve those inconsistencies in favor of the verdict. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support appellant's conviction. We overrule appellant's point of error.

We affirm the trial court's judgment.

/Ada Brown/
ADA BROWN
JUSTICE

Do Not Publish Tex. R. App. P. 47. 130218 F.U05

Court of Appeals Fifth Bistrict of Texas at Ballas JUDGMENT

DARREN DWYONE GREEN, Appellant No. 05-13-00218-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4, Dallas County, Texas Trial Court Cause No. F11-62506-K. Opinion delivered by Justice Brown. Justices Lang and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 25th day of February, 2015.

Case Details

Case Name: Green, Darren Dwyone

Court Name: Court of Appeals of Texas

Date Published: May 29, 2015

Docket Number: PD-0299-15

Court Abbreviation: Tex. App.