Wangare, Ousmane ( 2015 )

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No. PD-0112-15
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
FROM THE
SEVENTH DISTRICT COURT OF APPEALS
AMARILLO, TEXAS
No- 07-14-00176-CR
COURT OF CRIMINAL APPEALS
OUSMANE WANGARE
APR 01 2015
PETITIONER
Abel Acosta, Clerk
VS
FILED \H
COURT OF CRIMINAL APPEALS
RESPONDENT
STATE OF TEXAS APR 01 2015
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
PRO SE
Ousmane Wangare
Robertson # 1920786
12071 FM 3522
Abilene, TX- 79601
TABLE OF CONTENTS
SUBJECT MATTER PAGE NUMBER
Index of Authorities ii
Statement Regarding Oral Argument iii
Statement of the Case iv
Statement of Procedural History v
GROUND FOR REVIEW:
1. The Court of Appeals Erred in affirming the con
viction based upon sufficient evidence to establish
venue in the aggravated sexual assault charge 1
Argument and Authorities 2
Prayer for Relief END
Appendix containing the appellate opinion A
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INDEX OF AUTHORITIES
THE LAW PAGE NUMBER
Black-v-State , 645 Sw.2d 789, 790-91 (Tex.Crim.App. 1983) 6
Fairfield-v-State, 610 SW.2d 771, 779 (Tex.Crim.App. 1981) .. 3
Rippee-v-State, 384 Sw.2d 717, 718 (Tex.Crim.App. 1964) 3-4
Smith-v-United States, 79 S. Ct. 991, 360 U.S. 1, 3 L. Ed. 2d 1041
(1955) 5#6
Sudds-v-State, 140 Sw.3d 813, 816 (Tex.App. Houston [14th dist.]
2004, no pet.) 4
STATIUE:
Article 13.15, Tex.C.C.P ' 2.3.5.6.7
RULE:
66.3(c), Tex.R.A.P 1,2
66.3(d), Tex.R.A.P 1/2
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STATEMENT REGARDING ORAL ARGUMENT
Petitioner-appellant is a prisoner proceeding pro se and
thus is not available nor qualified to present oral arguments,
even though he urges that the venue issue merits oral present
ation to clarify the decisional law of Black-v-State, 645 Sw.2d
789, 790-791 (Tex. Crim. App. 1983, overruled on other grounds
by Schmutz-v-State, 440 SW.3d 29 (Tex. Crim. App. 2014; as it
applies to article 13.15, TEX. CODE CRIM. PROC. ANN. (West 2005)
Thank you.
-in-
STATEMENT OF THE CASE
Petitioner-appellant was charged by indictment with the
offense of Aggravated Sexual Assault [CR. 8; 3 RR. 6-8, 189-90].
A plea of not guilty was entered before a jury [3 RR. 8; 190].The
State's evidence showed that the complainant and her boyfriend
were abducted during a robbery and placed into separate cars. In
which the cars traveled across county lines within the State of
Texas. Petitioner was driving one of the two cars, alone with
the complainant who was an adult. She lodged a complaint against
petitbner that while driving through and across county lines had
forced her to perform oral sex on him. Thus, her testimony alone
was the single piece of evidence that convicted petitioner of the
crime charged.
The jury found petitioner guilty as charged in the indict
ment [CR. 164; 5 RR. -23]. After a [PSI] presentence investigation
report was generated the judge sentenced petitioner-appellant to
forty-five [45] years in the Texas Department of Criminal Justice.
An appeal was persued and perfected. The court of appeals dis
agreed with the sole ground of error raised and affirmed the con
viction.
After one extension of time this petition was timely filed.
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STATEMENT OF THE PROCEDURAL HISTORY
[1] The complainant lodged her complaint of having been abducted
in a robbery that allegedly occured in Tarrant County, Texas, and
in the midst of the abduction she claimed petitioner-appellant
forced her to commit oral sex;
[2] The State chose not to persue any robbery charge against pe
titioner nor any kidnapping but rahher chose to merely persue the
alleged aggravated sexual assault complaint;
[3] A Tarrant County, Texas, jury was impaneled, and returned a
verdict of guilty as charged in the indictment [CR. 8", 164; RR.
6-8, Vol. 3; 189-190, Vol. 3; and 23 at Vol. 5];
[4] Petitioner-appellant elected for the trial court Judge to
sentence him and after a [PSI] presentence investigation was con
ducted the Judge sentenced petitioner to forty-five [45] years in
the Texas Department of Criminal Justice;
[5] An appeal was perfected to the Seventh District Court of Ap
peals at Amarillo, Texas, in No. 07-14-00176-CR. On January 7, 2015,
in an unpublished opinion the court of appeals affirmed the con
viction;
[6] After one motion for extension to file [PDR] petition for dis
cretionary review this Texas Court of Criminal Appeals timely re
ceived the instant petition.
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No. PD-0112-15
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
OUSMANE WANGARE
PETITIONER
VS
RESPONDENT
THE STATE OF TEXAS
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES:
COMES NOW, the above named petitioner, acting in his own be
half, respectfully submitting his [PDR] petition for discretionary
review. Tex. R. App. Proc. 66.3(c) & (d).
IN SUPPORT THEREOF, petitioner-appellant would show the
Court:
REASON FOR REVIEW
The Court of Appeals has decided an important question
of State Law in conflict with this Court's decisions
and apparently misconstrued the application of TEX.
CODE CRIM. PROC. ANN. article 13.15, to the instant
ground for review.
IN THAT,
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GROUND FOR REVIEW
[restated]
[1] The Court of Appeals Erred in affirming the conviction based
upon sufficient evidence to establish venue in the aggravated sex
ual assault charge.
ARGUMENT AND AUTHORITIES
Pursuant to Texas Rules of Appellate Procedure 66.3(<£) & (d),
petitiioner-appellant urges the Court that the Seventh District
Court of Appeals had decided an important question of State Law in
conflict with this Court's applicable decisions; and apparently has
misconstrued the application of article 13.15, Tex. C.CP. (West
2005), to the aggravated sexual assault conviction.
THE INDICTMENT:
The instant indictment alleged that on August 3, 2012, in
Tarrant County, Texas, that petitioner committed the crime of ag
gravated sexual assault on Melissa by forcing her to perform oral
sex on him, i.e. he inserted his penis into her mouth.
The indictment at no time alleged any abduction or that
other counties may have been the the location of the crime alleged.
The State chose to specifically aver aggravated sexual assault by
inserting petitioner's penis into the mouth of the complainant
against her will and that this crime was committed in Tarrant County.
While ommitting any allegation whatsoever related to or regarding
any abduction. CR. p.8; RR.Vol.3, pp.6-8, 189-190.
Therefore, the issue at bar is whether petitioner committed
the crime of inserting his penis inside the mouth of the complain-
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ant against her wishes while in Tarrant County, Texas. Had the in
dictment averred an aBduction of said complainant then perhaps,
article 13.15, Tex.CC.P. would be applicable; or if the indict
ment had averred multiple counties then again, article 13.15
would be applicable. But the indictment did not aver any abduction
nor multiple counties.
ARTICLE 13.15:
Sexual assault may be prosecuted in the county in
which it is committed, in the county in which the
victim is abducted, or in any county through or
into which the victim is transported in the course
of the abduction and sexual assault
VENUE:
Venue is not an element odjthe of fense. Fairf ield-v-State,
610 SW.2d 771, 779 (Tex. Crim. App. [Panel Op,] 1981).Venue is a
jurisdictional issue that is founded upon the jurisidiction speci
fied in the indictment. Thus, though it is not an element of the
offense it still established by the county Garnd Jury that issued
the indictment the essesntial jurisdiction to try the case. If
no jurisdiction is averred in the indictment then the defect is
structural and the trial court gains no jurisdiction to try the
case. Likewise, if the indictment avers a specific county then
the crime alleged must be tried within that county, unless all
parties agree to change venue. Otherwise, where the jurisdiction
of the county alleged has no jurisdiction to try the case; Unless
indicated as more than one county. The multiple jurisdictions might
be applicable. Even as article 13.15 delineates.
Which is applicable to the case at bar. Multiple counties
were not averred. Rippee-v-State, 384 Sw.2d 717, 718 (Tex.Crim.App.
-3-
1964) [Evidence is sufficient to prove venue if from the evidence
the jury may reasonable conclude that the offense committed was in
the county alleged]; Sudds-v-State, 140 Sw.3d 813, 816 (Tex. App.
— Houston [14th Dist.] 2004, no pet.) [same]
The burden of proof is upon the State to prove proper venue
by a preponderance of the evidence. Art. 13.17, Tex.Crim.Pooc. BB
The State meets its burden by a preponderance if from the evidence
the jury matt reasonable conclude that the offense was committed
in the county alleged. Rippee-v-State, supra.
TO REASONABLE CONCLUDE:
To reasonably conclude from a preponderance of the evidence
that the offense of aggravated sexual assault was committed there
first must be a preponderance of the evidence that a crime, as al
leged in the indictment occured and then, the jury must find from
a preponderance of the evidence that said crime was committed in
Tarrant County, Texas.
IS THERE A
PREPONDERANCE OF THE EVIDENCE?
A preponderance of the evidence amounts to 51% and/or more
likely than not, but in the instance case there is only the com
plainant's accusation that petitioner while driving forced her
to perform oral sex upon himself. It is true that her boyfriend
corroboarated the fact that she was in the car with petitioner and
that he drove her to a specific location a couple counties away.
While the rest of the evidence demonstrated that the complainant
shot petitioner during what she claimed was a struggle over the gun.
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Yet, a struggle over a gun resulting in petitioner being shot by
the complainant does not corroborate the indictment allegation of
having forced the complainant to perform oral sex nor does the fact
the complainant's boyfriend corroborates she was in the car with
petitioner, and he was driving. Neither of those prove any sexual
assault. Only the complAInant' s accusation is prnjof but not proof
by a preponderance.
The bottomline is the statute, article 13.15, T.C.C.P., in-
conjunction with the indictment's averments.In that,
"Criminal Statutes and Rules must be given
strict interpretation in favor of defendant
where substantial rights are involved."
Smith-v-United States, 79 S. Ct. 991, 360 U.S. 1, 3 L. Ed. 2d 1041(1955).
While the indictment's averments at no time alleged any abduction
or multiple counties. Again, lets look at the plain meaning of the
statute in quetsion:
"Sexual assault may be prosecuted in the county
in which it is committed, in the county in which
the victim is abducted, or in any county through
or into which the victim is transported in the
course of the adduction and sexual asssault".
Art. 13.15, T.C.C.P.
From the onset it is clear the above statute's plain language
highlights three essential requirements for the statute to be appli-
able (1) sexual assault (2) option of multiple county prosecution
and (3) the victim is abducted. While the indictment in the instant
case does not grant venue to any of a number of counties but rather
to a single county only. Likewise, the indictment does not allege
any abduction of the victim. Yet, the evidence at trial showed an
abduction while in the course of robbery and the victim being
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transported from Tarrant County through another county and into a
final county. Thus, the abduction and transportation of the victim
relates to a robbery and though the victim lodged the accusation
of a sexual assault involving oral sex, it is obvious from the evi
dence that the oral sex did not occur in Tarrant County and was not
related to the robbery, if it occurred at all. The adult victim's
testimony alone is not proof by a preponderance that the oral sex
occurred by force, if it occurred at all.
At trial, the court's charge instructions at guilt/innocence
did not apply within its application paragraph of the jury charge
the article 13.15, T.C.C.P. Thus, its application to the indictment
that did not aver abduction or transportation or multiple counties
"must be givenstrict interpretation in favor of defendant where sub
stantial rights are involved." Smith-v-United States, supra.
Therefore, the court of appeals' opinion did not take into
account the jury charge not applying the 13.15 article. Though, it
did recognize significant facts related above, to wit:
"The record is not clear as to the
exact location of the charged offense."
See appellate opinion attached at p.2.
Furthermore, the court of appeals cited no decisional law
in support of their opinion other than the article in question and
a single case law, to wit, Black-v-State, 645 Sw.2d 789, 790-91
(Tex. Crim. App. 1983) [The State has the burden to prove venue
is proper in the county of prosecution).
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CONCLUSION
In short, absent absent the application paragraph of the trial
court's charge at guilt/innocence applying article 13.15, T.C.C.P.
it is simply not a legal shoe that fits, in light of the indict
ment alleging the single county of tarrant and not abduction or
transportation. Said indictment, as it is, was charged in the appli
cation paragraph of the trial court's charge at guilt/innocence.
Likewise, absent the court of appeals citing any decisional
law that article 13.15, T.C.C.P., is applicable absent no jury charge
application instruction, AND absent the indictment alleging any of
the essential requirements of article 13.15, then their ruling is
erroneous regarding venue being established.
For these reasons^petitioner-appellant urges the Court that
the court of appeals erred in affirming the conviction based upon
sufficient evidence to establish venue in the aggravated sexual
assault charge. Especially in light of their fact finding that "The
record is not clear as to the exact location of the charged offense."
Opinion at 2.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDEREDF, petitioner-appellant prays
this Honorable Court will grant this petition for discretionary re
view and thereafter, allow for briefing on the matter. Thank you.
RESPECTFULLY REQUESTED,
OUSMANE WANGARE: PETITIONER
cc
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VERIFICATION
I, Ousmane Wangare, do hereby verify under penalty of perjury
that the facts related in the foregoing petition for discretionary
review are true to the best of his knowledge and inaccordance with
the trial record he has been able to obtain. Thus, ousmane Wangare
does hereby attest to the facts being true by affixing his signat
ure below:
4^7^
OUSMANE WANGARE: AFFIANT
ROBERTSON UNTI # 1920786
12071 FM 3522
ABILENE, TX. 79601
cc
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CERTIFICATE OF SERVICE
I, Ousmane Wangare, the petitioner-appellant in the foregoing
[PDR] petition for discretionary review does hereby certify that
true copies of said petition were placed in the Robertson prison
mail box addressed to the Clerk of the Texas Court of Criminal Ap
peals on this 30th day of March 2015. I attest to this by affixing
my signature below:
/Us #•
645 S.W.2d 789, 790-91 (Tex. Crim. App. 1983), overruled on other
grounds by Schmutz v. State, 440 S.W.3d 29 (Tex. Crim. App. 2014). To sustain an
allegation of venue, it must only be proved by a preponderance of the evidence. Tex.
Code Crim. Proc Ann. art. 13.17 (West 2005). Sexual assault may be prosecuted in
the county in which it is committed, in the county in which the victim is abducted, or in
any county through or into which the victim is transported in the course of the abduction
and sexual assault. Id. art. 13.15. The State alleged in the indictment that appellant
caused the penetration of the mouth of the complainant by his sexual organ on May 6,
2012, in Tarrant County.
The evidence at trial showed that the complainant and her boyfriend were
accosted by appellant and two other men in Arlington, Texas, in Tarrant County. The
men attempted to rob them but the complainant and her boyfriend had very little money.
The complainant offered the boyfriend's car to the men. Both victims were driven by the
men to where the vehicle was located. Appellant then forced the complainant into the
boyfriend's car and drove her by himself to Dallas.1 Along the way, he compelled her to
perform oral sex on him. The record is not clear as to the exact location of the charged
offense. However, article 13.15 would permit venue in Tarrant County as the site in
which she was abducted and transported in part, and this is the venue provision upon
which the jury was charged. Nevertheless, appellant appears to contend that article
13.15 does not apply in this instance because the initial abduction was not sexually
motivated but occurred as part of a robbery.
Appellant cites no authority for the proposition that his intent at the time of the
abduction controls. Moreover, the venue statute says nothing about the accused's
mens rea at the time of the abduction. It simply refers to the county in which the
abduction occurred, and that was Tarrant. To write into the statute a requirement that
the accused intended to rape at the point of abduction would be tantamount to our
1The othertwo men took the boyfriend with them in anothervehicle.
2
usurping legislative prerogative. We will not write into the statute criteria the legislature
omitted from it.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
FILE COPY
No. 07-14-00176-CR
Ousmane Wangare From the Criminal District Court 2 of
Appellant Tarrant County
January 7, 2015
The State of Texas Opinion by Chief Justice Quinn
Appellee
JUDGMENT
Pursuant to the opinion of the Court dated January 7, 2015, it is ordered,
adjudged and decreed that the judgment of the trial court be affirmed.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have been paid are adjudged.
It is further ordered that this decision be certified below for observance.
oOo