Provost, Jacob

/2.0S/ST /** 9/S PDR ND. PD-1209-15, PD-1208-15

IN THE COURT OF CRIMINAL APPEALS

AT AUSTIN, TEXAS ORIGINAL JACOB PROVOST PETITIONER/APPELLANT V.

THE STATE OF TEXAS RESPONDANT/APPELLEE

On appeal from the Ninth District ..Court of Appeals, No.. 09-14-00088-CR PD-1209-15, No. 09-14-00087-CR PD^120B-15, and the 163rd District Court, Orange County, Texas, Trial Cause No. B130434-R, B130431-R.

RECEIVED IN PETITION FOR DISCRETIONARY REVIEU COURT OF CRIMINAL APPEALS DEC 212015 ORAL ARGUMENTS REQUESTED

Abel Acosta, Clerk

FILED IN JACOB PROVOST COURT OF CRIMINAL APPEALS TDCJ-CID# 0191 4271

Eastham Unit

2665 Prison Rd. 1 Abel Acosta, Clerk Lovelady , Texas 75B51-5609

PDR NO. PD-1209-15, PD-120B-15

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

AUSTIN, TEXAS

JACOB PROVOST PETITIONER/APPELLANT V.

THE STATE OF TEXAS RESPONDANT/APPELLEE

ON APPEAL FROM THE NINTH DISTRICT COURT OF APPEALS, No. 09-14-00087-CR, No. 09-14-00088-CR and the 163rd District Court, Orange County, Texas, Trial Cause No. B130434-R, B130431-R.

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS, Jacob Provost, Petitioner, respectfully submits the Petition for Discretionary Review, seeking an Acquittal/Remand for full con sideration of his appeal.

PARTIES TO PETITION

The following is a list of all parties to the trial courts judgement and the names and addresses of all trial and appellate.

PETITIONER PETITIONER•! S APPELLATE COUNSEL MR. JACOB PROVOST Mrs. Christine Brown-Zeto

1107 Green Ave

Orange, Texas 77630 THE "STATE OF TEXAS PETITIONER'S TRIAL COUNSEL

Mr. Nolan LeBlanc DISTRICT COURT STATES APPELLATE and TRIAL COUNSEL

HON. DENNIS POWELL. Mrs. Krispen Walker Orange County Court House 801 Division

Orange, Texas 77630

NINTH DISTRICT COURT OF APPEALS

The Hon. Chief Justice Steve McKeithen

The Hon. Justice Charles Kreger The Hon. Justice Hollis Horton

The Hon. LeAnne Johnson

TABLE OF CONTENTS

.PARTIES TO PETITION 1

TABLE OF CONTENTS ii INDEX OF AUTHORITIES iii STATEMENT REGARDING ORAL ARGUMENT 1 STATEMENT OF JURISDICTION 1 STATEMENT OF CASE 1 STATEMENT OF PROCEDURAL HISTORY 1 GROUNDS FOR REVIEW 2 ARGUMENTS 3 PRAYER FOR RELIEF ** CERTIFICATE OF SERVICE ^ UNSWORN DECLARATION 5 APPENDIX END

GROUNDS FOR REVIEW 1: DID THE COURT OF APPEALS ERR IN

HOLDING THAT THE EVIDENCE WAS SUFFICIENT TO FIND

APPELLANT GUILTY BEYOND REASONABLE DOUBT? 2

ii

INDEX DF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 27B¹, 61 L.Ed 2d 560 (1979)

TEXAS CASES: Biggs v. State, 921 S.W. 2d 282, 285 (Tex. App. - Houston [1st Dist.] 1995, Pet. ref'd). (Unfairly surprised by the inadequate summary). Briggs, 921 S.W. 2d at 286. Sec. C.R. p. 14-15 (Notice of intent to use hearsay statement.) — . 3 Brooks v. State, 323 S.W. 3d 893 (Tex. Crim. App. 2010). 3 Dorado v. State, 860 S.W. 2d 558, 560 (Tex. App. El Paso 1993, Pet. ref'd) 3

STATUTES

Tex. Penal Code Ann. § 22.021 (a)(1) (b)(i) (West Supp. 201^)

ill

STATEMENT REGARDING ORAL ARGUMENT

Mr. Provost respectfully requests oral argument. He presents an important issue which this Court I'm sure has dealt with in the past dealing with the sufficiency of the evidence in this case.

STATEMENT OF JURISDICTION

This Court has jurisdiction under Texas Constitution, Article V, Section 5, and Rule of Appellate Procedures 66.3.

STATEMENT OF THE CASE

Dating back to September 11, 2010 and August 28, 2010, the Petitioner was a suspect in an aggravated sexual assault in Orange County, City of Orange, Texas. The Petitioner was eventually charged with the offense of Aggravated Sexual Assault. Pursuant to a:judgement and sentence of the 163rd Court of Orange County, Texas, Jacob Provost was sentenced to thirty (30) years in the Texas Department of Criminal Justice .-Institutional Division, in case numbers B130434-R, B130431-R. In his Brief to the Ninth District Court of Appeals-Beaumont, TX, Jacob Provost challenged each allegation.

STATEMENT. OF PROCEDURAL HISTORY

On February 19,, 2014, Jacob Provost was sentenced to a thirty (30) year sentence in the Texas Department'of Criminal Justice - Institutional Division, for the offense of Aggravated Sexual Assault. On August 12, 2015, the Ninth District Court of Appeals affirmed Jacob Provost's con viction and sentence. Jacob Provost v. STATE No. 09-14-0008B-CR, No. 09-14-000B7-CR. There was no motion for rehearing filed by the Petitioner as a result of the Ninth District Court of Appeals affirm ing his conviction.

(1)

APPELLANT'S GROUNDS FOR REVIEW

GROUND 1: DID COURT OF APPEALS ERR IN HOLDING THAT THE EVIDENCE WAS

SUFFICIENT TO FIND APPELLANT GUILTY BEYOND REASONABLE DOUBT.

REASON FOR GRANTING THIS PETITION

This Court should grant this petition on the grounds that: 1) The Court of Appeals have decided an important question of State or the Court of Criminal Appeals or the Supreme Court of the United States 2) The Court of Appeals has so far departed from the accepted and : usual course of judicial proceedings as to call for an exercise of the COURT OF CRIMINAL APPEALS Power Of Supervision. Tex. R. App. Ann. 66.3(c) & (f) (Vernon Pamph. 2015)

(2)

ARGUMENT

GROUNDS 1. (RESTATED) DID THE COURT OF APPEALS ERR IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT TO FIND APPELLANT GUILTY BEYOND REAS ONABLE DOUBT?

The Appellant contends that the evidence was legally and factually insufficient to support conviction for Aggravated Sexual Assault. The State has failed to prove every element of the charge under Tex. Penal Code Ann. § 22.021(a) (1) (b)' (1) (West Supp. 2014). See C.R. Table of contents p.2, Indictment p.4. The Appellant also assent the verdict was irrational and unsupported by proof beyond reasonable doubt. That his Constitutional Due Process Right has been violated by the use of unsupported record evidence to deter mine guilt. Also that the Court of Appeals have misapplied the standard of Legal Sufficient Evidence. Which lacked credibility and weight. As in the Supreme Court Law Jackson v. Virginia, 443 U.S. 307; 99 S.C.T. 27B1 ; 61 L.Ed. 2d 560. (1979). See also C.R. Judgement and sentence p.26. See also Brooks v. State 323 S.W. 3d B93 (Tex. Crim. App. 2010). The Appellant further contends he was harmed by the lack of written summary of. the statement and his case code should be re versed. Dorado v. State, 860 S.W. 2d 558, 560 (Tex. App. El Paso 1993, Pet. ref'd). A purported summary thatprovides little more detail than the language of an indictment does not include the detail recitation made by the victim to the outcry witness is not insufficient under the statute. Biggs v. State, 921 S.W. 2d 2B2, 2B5 (Tex. App. - Houston) [1st Dist.] 1995, Pet. ref'd. (unfairly surprised by the inadquate summary). Biggs,"921 S.W.2d at 286. See C.R. p. 14-15 (Notice of intent to use hearsay state ment) .

(3)

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Jacob Provost respectfully asks the Court to grant this Petition and in regard to Ground #1, the proper remedy is to remand for a new trial. Therefore, the Appellant respectfully asks the Court to remand, the proper remedy is to acquit the Appellant of charges. Therefore, Appellant respectfully asks the Court to acquit him.. The Appellant also asks the Honorable Texas Court of Criminal Appeals to make a finding of facts and evidence of law concerning Ground #1, consider grounds for review, and to order a full and complete hearing on the merits and with brief.

&KLfti/ttfc Jacob Provost

TDCJ-CID #01914271

Eastham Unit

2665 Prison Rd. 1

Lovelady, Texas 75851-5609

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this \Q day of Dd£jLxv\V)OC, 20 15 , the following has been completed:

1) THE ORIGINAL COPY of the above and forgoing Petition and supporting brief has been mailed by U.S. Mail, post paid, to the COURT OF CRIMINAL APPEALS OF TEXAS, P.O. Box 12308 Capitol Station, Austin, Texas ,78711, for filing and handling in that Court pursuant to Tex. R. App. P. 9.2 of the Texas Rule of Appellate Procedures.

2) A legible copy of said Petition has been mailed by U.S. Mail, post paid, to the SERVICE ON STATE PROSECUTING ATTORNEY, P.O. Box 12405, Austin, Texas, 78711.

3) A legible copy of said Petition has been mailed by U.S.- Mail, post paid, to Krispen Walker, Orange County Court House, 801 Division, Orange, Texas, 77630.

iG^ V Jacob Pi Jacob Provost

(4)

UNSWORN DECLARATION

I, Jacob Provost, TDCJ-CID #01914271 , being presently incarcerated in the Texas Department of Criminal Justice, Eastham Unit in Houston County, Texas, declares under penalty of purjury that the foregoing is true and correct.

Executed on this date: ia,-»«-t6

Signature: WfiC rAr^nntfA

Civil Practice and Remedies Code, Title 6, Ch. 132, VTCA

(5)

APPENDIX

END

In The

Court ofAppeals

Ninth District of Texas at Beaumont

NO. 09-14-00087-CR NO. 09-14-00088-CR

JACOB PROVOST, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 163rd District Court Orange County, Texas Trial Cause Nos. B130431-R, B130434-R

MEMORANDUM OPINION

Jacob Provost1 appeals his two convictions for aggravated sexual assault. In Provost's sole issue on appeal, he argues the evidence is legally insufficient to support the finding of guilt for each conviction. We affirm.

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) (determining that the Jackson standard "is the only standard that a reviewing court should apply" when examining the sufficiency of evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Wesbrookv. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In a legal-sufficiency review, we are "required to defer to the jury's credibility and weight determinations because the jury is the solejudge of the witnesses' credibility and the weight to be given their testimony." Brooks, 323 S.W.3d at 899; see also Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). When faced with conflicting evidence, we presume the finder of fact resolved any conflicts in the testimony in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). If any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the judgment. See McDuffv. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In a bench trial, the trial court "is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the *3 testimony given by State or defense witnesses." Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. [Panel Op.] 1978).

In each case, the State charged Provost with aggravated sexual assault. The State alleged that on or about August 28, 2010 and September 11, 2010, Provost "intentionally and knowingly cause[d] the penetration of the sexual organ of [A.B.], a child who was then and there younger than 14 years of age and not the spouse of [Provost], by his penis[.]" A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means[.] Tex. Penal Code Ann. §

22.02 l(a)(l)(B)(i) (West Supp. 2014).2 The record reflects that A.B. is Provost's daughter.3 A.B. testified that after her parents divorced, she visited Provost regularly and, at times, spent the night.

A.B. enjoyed a good relationship with Provost and was a typical "daddy's little girl." A.B. recalled that her relationship changed with Provost when she was

2Although the statute has been amended since the offenses in question were committed, the changes are not material to the issues on appeal; accordingly, we cite the current version of the statute for convenience.

3To protect the privacy of the child relevant to Provost's case, we identify her by using initials that disguise her identity. See Tex. Const, art. 1, § 30 (granting crime victims "the rightto be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").

thirteen years old. According to A.B., three incidents occurred in August or September of 2010 that changed the nature of her relationship with Provost.

The first incident occurred one night while A.B. was spending the night with Provost. A.B. testified that she was asleep on the couch when she felt someone close to her face. When A.B. opened her eyes, Provost gave her a "hard kiss" on the lips. The next day Provost acted as if nothing had happened. A.B. recalled that she was in shock from the event and did not know what to do, but because she loved her father, she did not say anything to anyone. Although it was uncomfortable for her, she continued to go over to Provost's home.

A.B. testified that the second incident also occurred when she had gone over to Provost's home for an overnight visit. A.B. explained that she was halfway asleep on the couch when Provost asked her to come upstairs with him. She recalled that she entered Provost's bedroom to see what he wanted. According to A.B., when she entered the room, Provost forced himself on her. A.B. described in detail how Provost sexually assaulted her. She testified that Provost "pulled [her] shorts to the side" and "forced his penis inside of [her]." A.B. testified that Provost told her not to tell anyone what had happened. A.B. testified that she continued to go back to Provost's home because she wanted to be there for the young child that resided in the home, whom she considered to be like her sister.

The third incident also occurred in Provost's home. A.B. testified that she had finished using the bathroom upstairs and had started to go downstairs when Provost dragged her into his room and sexually assaulted her. A.B. testified in detail regarding the circumstances of the second sexual assault. She testified that Provost removed her shorts and "forc[ed] his penis into [her]." According to A.B., Provost warned her not to tell anyone what he had done or Provost would hurt her. A.B. recalled that Provost seemed less interested in her after she had a breast reduction at age fourteen, against Provost's wishes.

A.B. testified that Provost's girlfriend and the girlfriend's two- to three-year-old daughter resided in the home with him. However, A.B. explained that the girlfriend was not home when Provost kissed her or when he sexually assaulted her, and the young child was asleep in her bedroom during the incidents.

A.B. testified that after the sexual assaults occurred, she ran away from her mother's home at least twice and that Provost found her in Silsbee on one of these occasions and picked her up. When Provost retrieved A.B., he was not alone, and A.B. went willingly with him. A.B. also recalled that before Provost sexually assaulted her, she had a "really good" G.P.A. but that her G.P.A. suffered after the assaults.

A.B.'s mother testified that she met Provost when she was approximately thirteen years old. Provost is five years older than A.B.'s mother. A.B.'s mother started dating Provost, became pregnant, and had A.B. when she was fourteen years old. A.B.'s mother corroborated A.B.'s testimony that A.B. and Provost had enjoyed a good relationship for a number of years. A.B.'s mother recalled a major change started to develop in A.B.'s personality before she turned fourteen years old. She testified that A.B. started sneaking out, stealing cars, and was unable to pass her classes in school. According to A.B.'s mother, this behavior reflected a complete change in her daughter. She testified that A.B. started seeing a therapist and taking medication, but continued to withdraw.

A.B.'s stepfather corroborated her mother's testimony regarding A.B.'s change in demeanor. A.B.'s stepfather had a good relationship with A.B. and was concerned for her. A.B.'s stepfather started a conversation with A.B. in January 2013, which ultimately concluded in A.B's outcry of sexual abuse. A.B.'s stepfather testified regarding what A.B. had told him had happened, and A.B.'s outcry to her stepfather was consistent with her testimony at trial.

Provost's stepmother testified that she saw A.B. and Provost interact with one another positively at a July 4th gathering sometime in 2011 or 2012. She testified that although Provost is not a good provider for his family, he is a good father. Provost's stepmother admitted that she does not see A.B. very often. Provost's aunt also testified. She testified that she has never seen Provost act inappropriately around her children. She testified that she understood A.B. remained in contact with Provost, even throughout 2013.

Provost denied sexually abusing A.B. Provost testified that he does not know why A.B. would make these false allegations against him, but speculated that A.B. felt that he neglected her. He contends that his girlfriend was present during the times A.B. alleges Provost sexually assaulted her. We note that the record reflects that the girlfriend Provost references in his testimony appeared to testify at Provost's trial, but ultimately decided she did not want to testify on his behalf. Provost's counsel stated on the record that Provost felt like it would not be in his best interest to subpoena the girlfriend to testify.

On appeal, Provost contends that the evidence is insufficient because A.B.'s testimony is suspect due to her being "a very troubled child[.]" For example, he argues that her testimony should be viewed with suspicion because she ran away from her mother's house and gave her mother grief. He also contends that A.B. willingly goes with him when he comes to get her, which proves that she is not afraid of him. The credibility of A.B.'s testimony, however, was a factor for the trial court to consider in weighing the evidence, and we defer to the trial court's resolution of those issues.

In sexual abuse cases involving a child, the testimony of the child victim alone is sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. refd); West v. State, 121 S.W.3d 95, 111 (Tex. App.-Fort Worth 2003, pet. refd). Additionally, the judge, as the sole judge of the credibility of the witnesses, is free to accept or reject some, all, or none of the evidence presented by either side at trial. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We conclude a rational trial court could have found the essential elements of the offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 912.

Having overruled Provost's only issue on appeal, we affirm the judgments of the trial court.

AFFIRMED.

CHARLES KREGER Justice

Submitted on March 10, 2015 Opinion Delivered August 12,2015 Do not publish Before Kreger, Horton, and Johnson, JJ.

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Footnotes

[1] There is evidence in the record that Jacob Provost is also known as Jacob Provost Peeples.