                                                                            PD-0063-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                        Transmitted 2/17/2015 11:39:57 PM
                                                          Accepted 2/19/2015 10:40:05 AM
                                                                             ABEL ACOSTA
TO THE COURT OF CRIMINAL APPEALS OF TEXAS                                            CLERK


                            PD-0063-15
                 _________________________________


                 RAYMOND BUCHANAN, JR.,
                         Appellant
                            v.
                   THE STATE OF TEXAS,
                         Appellee

                 _________________________________


   PETITION FOR DISCRETIONARY REVIEW
    _________________________________________________________

     On Petition for Discretionary Review from the Court of
     Appeals for the First District, Houston, Texas in Cause No.
     01-13-00954-CR, Affirming the Conviction in Cause No.
     68872 from the 300th District Court of Brazoria County,
     Texas.
    _________________________________________________________

                                           R. Scott Shearer
                                           TBA No. 00786464
                                           917 Franklin, Suite 320
                                           Houston, Texas 77002
                                           (713) 254-5629
                                           (713) 224-2889 FAX
        February 19, 2015
                                           ShearerLegal@Yahoo.com

                                           Attorney for Appellant
                                           (on PDR only)

                                           February 17, 2014


                                  i
                                              SUBJECT INDEX
                                                                                                       Page

List of Authorities......................................................................................     iv

Names of All Parties..................................................................................        v

Statement Regarding Oral Argument...........................................................                  vi

Statement of the Case................................................................................         2

Statement of the Procedural History of the Case.........................................                      3

Ground for Review Number One...............................................................                   4


         GROUND FOR REVIEW NUMBER ONE: The court of appeals
         erred by applying an incorrect standard of review. The panel erred by
         misapplying this Court’s rule concerning harmless error found in
         Brooks v. State, 990 S.W.2d 278, 287 (Tex. Cr. App. 1999) and
         Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr. App. 1986).

                                                     (Op. at 10)

Ground for Review Number Two..............................................................                    4


         GROUND FOR REVIEW NUMBER TWO: The court of appeals
         erred by holding that the admission of a portion of Appellant’s
         recorded statement into evidence was harmless error. The admission
         of evidence that Appellant smoked synthetic marijuana was too
         dissimilar an act to prevent harm from the admission of Appellant’s
         discussion with the officers concerning his prior work with the drug
         enforcement administration. The complained of evidence had a
         substantial and injurious affect and influence upon the jury’s verdict at
         both the guilt and punishment stages.

                                                     (Op. at 10)


                                                           ii
Reasons for Review...................................................................................       4

Statement of facts…………………………………………………………..                                                                  5

Argument and Authorities..........................................................................          9

Ground for Review Number Three.............................................................                 12


         GROUND FOR REVIEW NUMBER THREE: The court of
         appeals plainly erred by holding that a video played for the jury was
         relevant to sentencing where the video was seized from Appellant’s
         cell phone without a warrant and was inadmissible under the new rule
         announced in Riley v. California.

                                                     (Op. at 12)

Argument and Authorities..........................................................................          12


Prayer for Relief........................................................................................   16

Certificate of Service.................................................................................     17

APPENDIX -                  Copy of the opinion rendered by the court of appeals…                           18




                                                           iii
                                          LIST OF AUTHORITIES

                                                                                                                        Page


CASES

Anderson v. State, 717 S.W.2d 622 (Tex. Cr. App. 1986) ................................. 4, 10

Bowman v. State, No. 05-13-01741-CR (Tex. App. – Dallas, February 5, 2015, no

  pet.) (unpublished) ................................................................................................14

Brooks v. State, 990 S.W.2d 278 (Tex. Cr. App. 1999) ..................................... 4, 10

Chung v. State, No. 10-13-00307-CR (Tex. App. – Waco, October 23, 2014, no

  pet.) ........................................................................................................................15

Griffith v. Kentucky, 479 U.S. 314 (1987) ...............................................................14

Riley v. California, - - - U.S.=- - -, 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL

  2864483 (2014) .............................................................................................. 12, 13

Shea v. Louisiana, 470 U. S. 51, 59 (1985) .............................................................14

State v. Granville, 423 S.W.3d 399 (Tex. Cr. App. 2014) ............................... 12, 13

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ...............14


RULES

TEX. R. APP. PROC. 38.1(a) .........................................................................................v




                                                               iv
                           NAMES OF ALL PARTIES

      In accordance with TEX. R. APP. PROC. 38.1(a), Appellant submits that the
following are interested parties:

      R. Scott Shearer -        Attorney for Appellant (on PDR only).

      917 Franklin, Suite 320
      Houston, TX 77002

      D. Craig Hughes -                 Attorney for Appellant (Trial & Appeal)

      D. Craig Hughes
      7322 Southwest Freeway, Suite 1100
      Houston, Texas 77074

      Raymond Buchanan -                Appellant.

      TDCJ #01893716
      H.H. Coffield Unit
      2661 FM 2054
      Tennessee Colony, TX 75884

      Jeri Yenne -                      Trial counsel for the State of Texas.
      Jessica Pulcher
      Leslie Sharp
      Trey D. Picard -                  Appellate counsel for the State of Texas.

      111 East Locust St., Suite 408A
      Angleton, Texas 77515

      Hon. K. Randall Hufstetler - Presiding judge of the Trial Court.

      300th District Court
      111 E. Locust, Room 401
      Angleton, TX 77515


             STATEMENT REGARDING ORAL ARGUMENT

                                          v
     Appellant believes oral argument will be helpful. Appellant requests oral

argument.




                                     vi
 TO THE COURT OF CRIMINAL APPEALS OF TEXAS

                                 PD-0063-15
                       _________________________________


                        RAYMOND BUCHANAN, JR.,
                                Appellant
                                   v.
                          THE STATE OF TEXAS,
                                Appellee

                       _________________________________


        PETITION FOR DISCRETIONARY REVIEW
           _________________________________________________________

           On Petition for Discretionary Review from the Court of
           Appeals for the First District, Houston, Texas in Cause No.
           01-13-00954-CR, Affirming the Conviction in Cause No.
           68872 from the 300th District Court of Brazoria County,
           Texas.
           _________________________________________________________




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:


      APPELLANT, RAYMOND BUCHANAN, JR., by and through his

counsel on appeal, files this Petition for Discretionary Review. In support of his

request for review, Appellant would respectfully show the Court the following:




                                        1
                           STATEMENT OF THE CASE


      Appellant was charged in a five (5) count indictment alleging sexual assault,

sexual assault of a child, sexual performance by a child, and with possession of

child pornography. Appellant pleaded not guilty and a jury trial ensued on October

15, 2013. Appellant was tried on three of the five counts of the indictment after the

trial court granted Appellant’s motion for severance. (RR II at 4-7). The jury

returned a guilty verdict on the offense of sexual assault of a child as charged in

Count II of the Indictment. See CR at 61. The jury found Appellant not guilty of

the remaining counts. (CR at 61, 64, 66). The jury assessed punishment at thirty-

five (35) years imprisonment in the Texas Department of Criminal Justice–

Institutional Division and assessed a fine in the amount of $10,000.00. (CR at 73).

Appellant gave timely notice of appeal. (CR at 67).



____________________________________________________
*    The record on petition for discretionary review
      is cited as follows:

CR at p      .......... Clerk’s record at page p.

RR V at p    .......... Reporter’s record volume V at page p.

Op. at p     .......... Opinion at page p.




                                             2
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE



        In an UNPUBLISHED opinion delivered December 16, 2014, a panel of the

First Court of Appeals AFFIRMED Appellant’s conviction for sexual assault of a

child. The Appellant did not file a motion for rehearing. The Appellant’s Petition

for Discretionary Review was due on January 15, 2015. Appellant filed a Motion

for Extension of Time to File Petition for Discretionary Review, which was

granted. Appellant’s Petition for Discretionary Review was due February 16,

2015.     Because February 16 was a state holiday, Appellant’s Petition for

Discretionary Review is due February 17, 2015.




                                        3
                          GROUNDS FOR REVIEW



GROUND FOR REVIEW NUMBER ONE: The court of appeals erred by
applying an incorrect standard of review. The panel erred by misapplying this
Court’s rule concerning harmless error found in Brooks v. State, 990 S.W.2d 278,
287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr.
App. 1986).

                                    (Op. at 10)


GROUND FOR REVIEW NUMBER TWO: The court of appeals erred by
holding that the admission of a portion of Appellant’s recorded statement into
evidence was harmless error. The admission of evidence that Appellant smoked
synthetic marijuana was too dissimilar an act to prevent harm from the admission
of Appellant’s discussion with the officers concerning his prior work with the drug
enforcement administration. The complained of evidence had a substantial and
injurious affect and influence upon the jury’s verdict at both the guilt and
punishment stages.

                                    (Op. at 10)


Reasons for Review:


1.    The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of this Court on the same matter. The decision of the First
Court of Appeals is in conflict with this Court’s holdings in Brooks v. State, 990
S.W.2d 278, 287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627
(Tex. Cr. App. 1986).

2.    The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.


                                        4
Statement of facts:


       On October 4, 2011, at approximately 5:30 a.m. to 6:00 a.m., Pearland

Police officer Harry Hunt had just finished his shift and was headed home. (RR V

at 19). As he neared his residence, he noticed a young girl walking in circles who

was crying and appeared to be in some distress. (RR V at 19). She first identified

herself as being Tyeishia Anderson, and who gave a date of birth of April 20, 1993,

which would have made her approximately eighteen (18) and a half years old at

that time. (RR V at 25-26). When asked by Hunt what was wrong, she responded

to him with something along the lines indicating that she had been the victim of a

sexual assault. (RR V at 21-23). It was difficult for Officer Hunt to determine

exactly what had happened due to the fact that Ms. Anderson was very upset. (RR

V at 20). Believing that an investigation was necessary, Hunt called for an officer

who was on duty to respond to the scene. (RR V at 20). After the second officer

arrived, Ms. Anderson took him to a townhouse development in an unincorporated

section of Pearland where she claimed the sexual assault occurred. (RR V at 21-

22).   It was later determined that Mr. Buchanan rented a townhome in that

development. (RR V at 147). Later that morning, Detective Jeff Dandeneau, an

investigator with the Brazoria County Sheriff’s Office, spoke with Ms. Anderson.

(RR V at 104-105). She was again identified as Tyeishia Anderson.

                                        5
      Ms. Anderson told him that she had been at a smoke shop in Houston where

she met an older male. (RR V at 29-30). She left with the man in his vehicle

thinking they were going to go somewhere in Houston and watch the Super Bowl

or some other football game. (RR V at 30).     She stated that she became a little

nervous as they were driving because it was taking longer than she expected. (RR

V at 33). When she asked the male where he lived, he told her his residence was in

Pearland. She voluntarily continued with him to his residence. (RR V at 33-34).

Ms. Anderson stated that they smoked some fake marijuana. (RR V at 36-37).

After that, she stated that she could not remember what happened until she woke

up the next morning. (RR V at 42-43). She claimed that the male told her “you

have something good inside of you”, and that a piece of a condom came out of her

vagina after she urinated. (RR V at 44-45).

      Detective Dandeneau then made arrangements to have a Sexual Assault

Nurse Exam (“SANE”) of Ms. Anderson done at Memorial Southeast Hospital in

Houston. (RR V at 105). On the drive to the hospital, Dandeneau questioned Ms.

Anderson about whether she had been prostituting. She denied that she had been.

As they were waiting for the SANE nurse to arrive, Ms. Anderson was asked to

give a written statement about what had happened. She then gave two written

statements and once again identified herself as being Tyeishia Anderson, with a

date of birth of April 20, 1993.    After the SANE exam was completed, Ms.

                                        6
Anderson was driven back to her home in southwest Houston. (RR V at 9).

Semen collected from M.K. during the SANE exam ultimately matched a DNA

sample taken from the Appellant under a search warrant. (RR V at 94-95)(RR VI

at 56).

          While the SANE exam was taking place, law enforcement officers secured a

search warrant for Appellant’s residence at the townhouse development identified

by Ms. Anderson. (RR V at 80, 107-108). Upon arriving at the residence, they

called Appellant on his cell phone. Reaching his voice mail, the officers then

knocked on his door. (RR V at 108). After failing to reach Appellant on his cell

phone or getting an answer at the front door, officers made forced entry into the

residence. In the bedroom, they allegedly found fake marijuana and condoms.

(RR V at 112-113). As they were finishing their search, the officers walked into

the closet upstairs, and found Appellant Buchanan hiding in a closet. His cell

phone was beside the bed. (RR V at 112). He was immediately arrested. (RR V at

114).

          Several days after the search of Appellant’s residence, Detective Dandeneau

went back to the residence in southwest Houston where he had previously dropped

off Ms. Anderson. (RR V at 118). She was not there, but another male and female

were present and they informed Dandeneau that her name was not Tyeishia

Anderson. (RR V at 121-122). They gave Dandeneau information about how to

                                           7
get in touch with her. (RR V at 121-122, 155-156).                They also informed

Dandeneau that they didn’t think she was over eighteen (18) years of age and that

they thought she was prostituting herself. (RR V at 121-122, 155-156). The

detective then made contact with Ms. Anderson and was told by her that she had

not provided her real name. She told Dandeneau that her real name was “M.K.”

and that her date of birth was actually August 11, 1995, making her sixteen (16)

years old at the time. (RR V at 124). “M.K.” identified the Appellant from a photo

spread. (RR V at 130). She also confirmed that she was a runaway from the Katy

area. (RR V at 157). When Dandeneau confronted her with his suspicion that she

was a prostitute, “M.K.” denied it. (RR V at 143). “M.K” told him that she went

to the smoke shop and tried to buy cigarettes. Because she was not old enough, the

store clerk refused to sell them to her. She also stated that she needed to earn

money, and that is when Appellant allegedly approached her. (RR V at 49-50).

She offered sex to him for money, but he refused.            Because she didn't have

anything to do, she decided to go with him, even though he wasn’t going to pay her

for sex. (RR V at 63-64).

      At trial, the State’s case rested primarily on the testimony of “M.K.”. She

testified to the alleged facts of the case, including her age at the time of the offense.

More specifically, she testified that she was born in Accra, Ghana, on August 11,

1995. Over objection from defense counsel, she repeatedly testified to hearsay

                                           8
evidence, particularly her date of birth. There was no corroborating evidence

admitted to substantiate her testimony concerning her date of birth, such as a birth

certificate, or testimony from her mother or some other individual who was present

at her birth or had personal knowledge concerning same. All other testimony from

the officers who participated in the investigation concerning “M.K.’s” date of birth

was based solely on hearsay evidence from her. “M.K.” was unable to identify the

Appellant in court during her testimony. (RR V at 30).

      During the punishment phase, the court admitted into evidence an unrelated

video found on Appellant’s phone which showed him having sexual intercourse

with an adult female. (RR VIII at 16)(State’s Exhibit 26A).



Argument and Authorities:



      In its opinion of December 16, 2015, Appellant submits the panel fell into

error when it held that a portion of Appellant’s recorded statements to officers

concerning his work with the drug enforcement administration was harmless error.

(Op. at 10).

      In his recorded statement to the police, Appellant detailed his work for the

drug enforcement administration. (Op. at 10). Appellant objected to the admission

of this portion of the recorded statement but his objection was overruled. (RR V at

                                         9
190-191). Appellant urged this point on Appeal. The court of appeals held as

follows:



      Buchanan also complains the trial court admitted the portion of his
      recorded statement in which he mentioned working with the DEA.
      He contends that it improperly left the jury with the impression that
      he was involved in narcotics activity. To the extent that the trial
      court’s admission of this statement created such an impression with
      the jury, we conclude it too was harmless in light of M.K.’s
      unobjected-to testimony that she and Buchanan smoked synthetic
      marijuana together.


(Op. at 10).


       The Court of Appeals cites this Court’s decisions in Brooks v. State, 990

S.W.2d 278, 287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627

(Tex. Cr. App. 1986) for the proposition that the admission of evidence sufficiently

similar to the challenged evidence makes any error in admitting the challenged

evidence harmless.    Brooks and Anderson do say as much.            The improper

admission of one piece of evidence is deemed harmless error when another same or

similar piece of evidence comes in properly or without objection. See Brooks v.

State, 990 S.W.2d 278, 287 (Tex. Cr. App. 1999) (“any error in admitting the

evidence was harmless in light of other properly admitted evidence proving the

same fact.”) and Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr. App. 1986) (“If


                                         1
the fact to which the hearsay relates is sufficiently proved by other competent and

unobjected to evidence . . . admission of the hearsay is properly deemed harmless

and does not constitute reversible error.”).

      In the present case, however, the court of appeals attempts to equate the

smoking of synthetic marijuana with major drug dealing.         The two acts are

completely dissimilar. One involves the smoking of a legal 1 substance for personal

use, the other concerns federal drug dealing, usually in large quantities of what

most people would consider to be hard core drugs. These acts are simply not the

same. While the rule of Brooks and Anderson justify a finding of harmless error

when comparing the admission of apples to apples, the rule does not support a

finding of harmless error when comparing the admission of apples to oranges.

      This evidence had a substantial and injurious affect and influence upon the

jury’s verdict at both the guilt and punishment stages. Appellant was unfairly

convicted based upon character conformity rather than the facts of the case. The

State’s case was weak, as it involved an admitted prostitute who gave conflicting

statements to the police about her age. Moreover, Appellant was found not guilty

on the other two counts.       Under these circumstances, the admission of this

evidence was harmful and the court of appeals erred by finding otherwise.




                                          1
        GROUND FOR REVIEW NUMBER THREE: The court of
        appeals plainly erred by holding that a video played for the jury was
        relevant to sentencing where the video was seized from Appellant’s
        cell phone without a warrant and was inadmissible under the new rule
        announced in Riley v. California.

                                      (Op. at 12)


Reasons for Review:


1.    The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of the United States Supreme Court on the same matter. The
decision of the First Court of Appeals is in conflict with the court’s holding in
Riley v. California, U.S., 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL 2864483
(2014).

2.    The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of this Court on the same matter. The decision of the First
Court of Appeals is in conflict with this Court’s holding in State v. Granville, 423
S.W.3d 399, 417 (Tex. Cr. App. 2014).

3.    The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.




Argument and Authorities:

1
    At the time of the offense synthetic marijuana was most likely legal as it had yet
                                           1
      The most damaging and prejudicial evidence that was admitted during the

punishment phase was State’s Exhibit 26. (RR VIII at 16). This evidence was a

video downloaded from Appellant’s cell phone which depicted him having sexual

intercourse with another adult woman. 2

      While this appeal was pending, the United States Supreme Court decided

Riley v. California, - - - U.S. - - -, 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL

2864483 (2014). In Riley, the Court held that the police must obtain a warrant

before searching the contents of a cell phone seized incident to an arrest. 134 S.Ct.

2473, 189 L.Ed.2d 430, Id. WL at *20; cf. State v. Granville, 423 S.W.3d 399, 417

(Tex. Cr. App. 2014) (holding “a citizen does not lose his reasonable expectation

of privacy in the contents of his cell phone merely because that cell phone is being

stored in a jail property room.”). The Supreme Court concluded that the search of

the cell phones did not fit within the parameters of the “search incident to arrest”

and it held that a “warrant is generally required before such a search, even when a

cell phone is seized incident to arrest.’ Id. at 2493.


to be proscribed by statute.
2
  Appellant filed a motion to suppress evidence (CR at 8) and a motion to suppress
his oral statements. (CR at 11). Appellant’s motion to suppress oral statements
was granted in part and denied in part. (CR at 84) (RR V at 193-195). There is
nothing in the record showing whether his motion to suppress evidence was ever
ruled upon.

                                           1
      The Riley court announced a new rule for criminal prosecutions. Bowman v.

State, No. 05-13-01741-CR (Tex. App. – Dallas, February 5, 2015, no pet.)

(unpublished) (“Bowman’s convictions are not final, therefore Riley applies

retroactively.”).

      A new rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct review or not yet final.

In Griffith v. Kentucky, 479 U.S. 314 (1987) the Supreme Court held that the

failure to apply a newly declared constitutional rule to criminal cases pending on

direct review violates basic norms of constitutional adjudication. Griffith, 479 U.S.

at 322. The “integrity of judicial review” requires the application of the new rule

to ‘all similar cases pending on direct review.” Griffith, 479 U.S. at 323. A new

rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, state or federal, pending on direct review or not yet final, with no exception

for cases in which the new rule constitutes a “clear break’ with the past. Griffith,

479 U.S. at 328.

      In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

the Court established the terms under which its decisions in criminal cases will

apply retroactively. Generally, a new constitutional rule of criminal procedure will

apply to cases still pending on direct review but not to cases that have become final

before the new rules are announced. This analysis has been applied in the Fourth

                                           1
Amendment context. See Shea v. Louisiana, 470 U. S. 51, 59 (1985) (the Fifth

Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which

prohibited the use, after a suspect had requested counsel, of a confession obtained

by police-instigated interrogation without the suspect’s attorney’s being present,

was retroactive to cases on direct review when Edwards was decided. Court held

that there was nothing about a Fourth Amendment rule that suggested it should be

given greater retroactive effect than a Fifth Amendment rule).

         The United States Supreme Court decided Riley while Appellant’s appeal

was pending. Thus, the court of appeals plainly erred by holding that the cell

phone video was relevant to Appellant’s sentencing. The case should have been

reversed to allow Appellant to invoke the new rule announced by Riley. The

illegally seized cell phone video had an enormous impact upon Appellant’s

sentence. It cannot be said beyond a reasonable doubt that the admission of this

improperly seized evidence did not contribute to Appellant’s punishment. See

Chung v. State, No. 10-13-00307-CR (Tex. App. – Waco, October 23, 2014, no

pet.).




                                         1
                           PRAYER FOR RELIEF


      FOR THESE REASONS, Appellant respectfully asks this Court to grant
review of the decision of the court of appeals. Appellant further prays that this
Court will reverse the judgment of the court of appeals.


                                                 Respectfully submitted,


                                           By:   /s/ R. SCOTT SHEARER
                                                 R. Scott Shearer
                                                 TBA No. 00786464
                                                 917 Franklin, Suite 320
                                                 Houston, Texas 77002
                                                 (713) 254-5629
                                                 (713) 224-2889 FAX
                                                 ShearerLegal@Yahoo.com

                                                 Attorney for Appellant
                                                 (on PDR only)

                                                 February 17, 2015




                                       1
                        CERTIFICATE OF SERVICE


       I certify that a copy of this Petition for Discretionary Review has been
served upon the State of Texas by e-mailing a copy of same to the following
parties at their respective addresses on this the 17th day of February, 2015:


TREY D. PICARD, A.D.A.
111 EAST LOCUST ST., SUITE 408A
ANGLETON, TEXAS 77515
TREYP@BRAZORIA-COUNTY.COM

LISA C. MCMINN
STATE PROSECUTING ATTORNEY
209 W. 14TH STREET
AUSTIN, TEXAS 78701




                                                /s/ R. SCOTT SHEARER
                                                R. Scott Shearer




                                      1
        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

          Certificate of Compliance with Type-Volume Limitations
                         and Typeface Requirements.


1.   This Petition for Discretionary Review complies with the type-volume
     limitation of TEX. R. APP. PROC. 9.4(i)(2)(D) and (3) because:


          This Petition for Discretionary Review contains 2,861
          words, excluding the parts of the Petition for
          Discretionary Review exempted by TEX. R. APP. PROC.
          9.4(i)(1).


2.   This Petition for Discretionary Review complies with the typeface
     requirements of TEX. R. APP. PROC. 9.4(e) because:


          this Petition for Discretionary Review has been prepared
          in a conventional proportionally spaced typeface using
          Microsoft WORD 97 version 7.0 in Times New Roman
          14 point type.




                                               /s/R. SCOTT SHEARER
                                         R. Scott Shearer




                                     1
APPENDIX




   1
Opinion issued December 16, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas


                             NO. 01-13-00954-CR


                  RAYMOND BUCHANAN, JR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee
                  On Appeal from the 300th District Court
                         Brazoria County, Texas
                       Trial Court Cause No. 68872
                        MEMORANDUM OPINION

      A jury found Appellant Raymond Buchanan, Jr. guilty of sexual assault of a

child and sentenced him to 35 years’ confinement.     In two issues, Buchanan

contends that (1) there was insufficient evidence to prove that the complainant

M.K. was under the age of 17 at the time of the offense and (2) the trial court
abused its discretion in admitting extraneous-offense evidence. We affirm.

                                   Background

      M.K. testified that as she left a smoke shop in Houston, a man, later

identified as Buchanan, asked if she wanted to go to his house to watch football.

M.K. agreed and testified that once they arrived, they smoked synthetic marijuana

and watched football.

      M.K. testified that after smoking the synthetic marijuana, she was unable to

control herself and needed help walking up the stairs. She fell asleep in the

upstairs game room, and the next thing that she remembered was waking up in

Buchanan’s bed the next morning with her underwear missing. M.K. testified that

Buchanan told her that he had sexual intercourse with her and that there was a

“surprise inside of her.” When she went to the restroom she found a condom

inside her vagina. M.K. asked Buchanan to take her home, and after he dropped

her off at a gas station, she flagged down Sergeant H. Hunt of the Pearland Police

Department.

      M.K. initially gave police a fake name and birthdate because she was a

runaway and “scared.” But she later admitted that she was under the age of 17 and

that she was actually born on August 11, 1995. The trial court admitted M.K.’s

Texas Identification Card, which corroborated this.




                                         2
      Sergeant J. Dandeneau of the Brazoria County Sheriff’s Office also testified.

A week after the assault, M.K. told him that her actual date of birth was August 11,

1995, and that she was 16 years old at the time of the assault. Dandeneau testified

that, during his investigation, he discovered sexually explicit photographs of M.K.

on Buchanan’s cell phone. M.K. told Dandeneau that she did not consent to

Buchanan photographing her, and M.K. also testified that she did not consent to

the photographs.

      Dandeneau also found several plastic bags of synthetic marijuana, or

“Kush,” in Buchanan’s home. Deputy J. Gentry of the Brazoria County Sheriff’s

Department ID Division testified that he took photographs of several bags of Kush

found in Buchanan’s house.

      Tammy Bires, a forensic scientist in the DNA Section of the Department of

Public Safety, also testified. Bires told the jury that Buchanan’s DNA sample

matched the semen taken from M.K.’s body.

      The trial court admitted a video recording of Buchanan’s oral statements

during his custodial interrogation in which Buchanan discussed working with the

Drug Enforcement Agency and using synthetic marijuana.

      During the punishment phase of the trial, the trial court admitted State’s

Exhibit 26A, a sexually explicit video lasting approximately 20 minutes. The

video showed Buchanan engaging in sexual intercourse with an adult woman, A.B.


                                         3
      A.B. testified in the punishment phase. She told the jury that State’s Exhibit

26A depicts her repeatedly telling Buchanan to stop having intercourse with her.

A.B. had no recollection of the incident and testified that she was incoherent

during the video. She testified that she had consumed a large quantity of alcohol

and that she did not consent to having sex with Buchanan or to having him record

it. She testified that towards the end of the recording she began “waking up and

realizing what’s going on.” A.B. asked Buchanan to stop more than ten times, and

he did not.

                           Sufficiency of the Evidence

A.    Standard of Review

      We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove,

beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781 (1979)).    Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at


                                         4
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      We do not resolve any conflict of fact, weigh any evidence, or evaluate the

credibility of any witnesses, as this is the function of the trier of fact.      See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore

resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s

credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625

(Tex. Crim. App. 2006).

B.     Applicable Law

      “A person commits [sexual assault of a child] if the person intentionally or

knowingly causes the penetration of the anus or sexual organ of a child by any

means.” TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West 2011). For purposes of

section 22.011, a child is “a person younger than 17 years of age.”               Id.

§ 22.011(c)(1).

C.    Analysis

      Buchanan challenges the sufficiency of the evidence to prove that M.K. was

under the age of 17 at the time of the assault. According to Buchanan, “the only

evidence admitted to prove the age of [M.K.] was her uncorroborated hearsay


                                         5
testimony concerning her date of birth, along with the hearsay testimony of law

enforcement officers which was based solely on hearsay statements made by

[M.K.].”

      “[T]he testimony of the complainant as to her age and birth date [is]

sufficient to prove that she was under the age of seventeen at the time of the

offense.” Perez-Del Rio v. State, No. 14-04-00963-CR, 2006 WL 561887, at *3

(Tex. App.—Houston [14th Dist.] Mar. 2, 2006, pet. ref’d) (mem. op., not

designated for publication). Thus, M.K.’s testimony that she was 16 at the time of

the offense was sufficient to prove that she was under 17 at the time. See id.; see

generally Jason v. State, 589 S.W.2d 447, 449 (Tex. Crim. App. 1979) (same); see

also TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014) (providing that

testimony of child under 17 alone is sufficient to convict defendant of sexual

assault of a child). Buchanan challenges M.K.’s testimony about her birthdate as

hearsay because, according to him, it was not based on her personal knowledge,

but instead on what she learned from hearsay statements or looking at hearsay

documents. Whether M.K.’s testimony was hearsay does not change our analysis

because we consider both properly and improperly admitted evidence in a

sufficiency challenge. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.

App. 2013) (reviewing court considers all admitted evidence, regardless of whether




                                        6
properly or improperly admitted, when reviewing sufficiency of evidence); Powell

v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (same).

      Second, Buchanan contends that the evidence is insufficient because M.K.

was not credible. In support, Buchanan correctly points out that M.K. initially lied

to the police about her name and age. But the credibility of M.K.’s testimony was

a factor for the jury to consider in weighing the evidence, and we defer to the

jury’s resolution of the conflicting evidence. See Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury’s

determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of

the verdict).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found that Buchanan intentionally or knowingly

penetrated M.K.’s sexual organ by Buchanan’s sexual organ, that M.K. was under

17, and that M.K. was not Buchanan’s spouse. Accordingly, we hold that the

evidence was legally sufficient to support the judgment.

      We overrule Buchanan’s first issue.

                 Evidentiary Rulings in Guilt-Innocence Phase

      Buchanan contends that the trial court abused its discretion by admitting four

pieces of evidence: (1) a photograph of a bag of synthetic marijuana, (2) officers’


                                         7
testimony   that   they   found    synthetic   marijuana    in   Buchanan’s    home,

(3) Buchanan’s admission during a police interrogation that he used synthetic

marijuana, and (4) Buchanan’s statement during an interrogation that he worked

with the DEA.

A.    Standard of Review and Applicable Law

      We review a trial court’s ruling on admissibility under an abuse of discretion

standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We

will not reverse a trial court’s ruling on evidentiary matters unless the decision was

outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d

787, 790 (Tex. Crim. App. 2007). If the trial court’s ruling can be justified on any

theory of law applicable to that ruling, the ruling will not be disturbed. De La Paz,

279 S.W.3d at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App.

1982) (“When a trial court’s ruling on the admission of evidence is correct,

although giving a wrong or insufficient reason, this Court will not reverse if the

evidence is admissible for any reason.”)).

      Even if a trial court errs by improperly admitting evidence, reversal is

warranted only if the appellant demonstrates that the erroneous admission of this

evidence affected his substantial rights. TEX. R. APP. P. 44.2(b). A substantial

right is affected when the error had a substantial and injurious effect or influence

on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).


                                          8
We review the record as a whole to determine whether the error had a substantial

influence on the jury’s verdict. Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim.

App. 1998).

      “‘It is well established that the improper admission of evidence does not

constitute reversible error if the same facts are shown by other evidence which is

not challenged.’” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)

(quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)). Thus,

the improper admission of evidence is harmless if the same or similar evidence is

admitted without objection at another point in the trial. See id.

B.    Analysis

      Three of Buchanan’s evidentiary challenges relate to evidence that there was

synthetic marijuana in his house. We conclude that even if it was error to admit

this evidence, the error would not warrant reversal.

      Buchanan did not object when M.K. testified that Buchanan had synthetic

marijuana in his house and that they smoked it together. Buchanan did object

when the State later offered a photograph of the synthetic marijuana found in

Buchanan’s house, two officers’ testimony about finding synthetic marijuana in

Buchanan’s home, and a video in which Buchanan admits smoking synthetic

marijuana. We conclude that the import of the challenged evidence was that it

showed that Buchanan smoked synthetic marijuana.             Because M.K.’s earlier


                                          9
unobjected-to testimony that she and Buchanan smoked synthetic marijuana

together at his home was sufficiently similar to the challenged evidence, any error

in admitting the challenged evidence was harmless. See Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc) (improper admission of

evidence does not constitute reversible error and is properly deemed harmless if

same or similar facts are proved by other properly admitted evidence); Anderson v.

State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (en banc) (same).

      Buchanan also complains the trial court admitted the portion of his recorded

statement in which he mentioned working with the DEA. He contends that it

improperly left the jury with the impression that he was involved in narcotics

activity. To the extent that the trial court’s admission of this statement created

such an impression with the jury, we conclude it too was harmless in light of

M.K.’s unobjected-to testimony that she and Buchanan smoked synthetic

marijuana together. See Brooks, 990 S.W.2d at 287.

                            Punishment Phase Video

      During the punishment phase of trial, evidence may be offered of any matter

the court deems relevant to sentencing, including the prior criminal record of the

defendant and any extraneous crime or bad act regardless of whether he has

previously been charged with or finally convicted of the crime or act,

notwithstanding Rules 404 and 405 of the Texas Rules of Evidence. See TEX.


                                        10
CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014); see also Erazo v.

State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). “[R]elevance during the

punishment phase of a non-capital trial is determined by what is helpful to the

jury.” Erazo, 144 S.W.3d at 491 (emphasis in original).

      Extraneous offense evidence is offered during the punishment phase to assist

the jury in determining punishment. See Ellison v. State, 201 S.W.3d 714, 719

(Tex. Crim. App. 2006). But evidence may still be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403;

see Rogers v. State, 991 S.W.2d 263, 266–67 (Tex. Crim. App. 1999) (en banc)

(even if punishment evidence is otherwise admissible under article 37.07, it may be

excludable under Rule 403).       We review a trial court’s decision to admit

punishment evidence under an abuse-of-discretion standard. Davis v. State, 329

S.W.3d 798, 803 (Tex. Crim. App. 2010).

      Buchanan argues that the trial court abused its discretion by admitting a

video 1 of him having sexual intercourse with A.B. He contends that the video was

not relevant and that it was admitted in violation of Rules 403 and 404(b).




1
      Buchanan complains about the trial court’s admission of Exhibit 26. Exhibit 26
      contained a video clip of A.B. and a clip of another unidentified woman. Because
      the trial court admitted only the video clip of A.B. and Buchanan engaging in
      sexual intercourse, as Exhibit 26A, we construe Buchanan’s argument regarding
      Exhibit 26 as a challenge to the admission of the video of A.B.
                                         11
      We conclude that the video’s admission was not an abuse of discretion.

First, the video was relevant in that it informed the jury of Buchanan’s character

and provided helpful information for the jury to assess an appropriate sentence.

See Erazo, 144 S.W.3d at 491 (relevance during the punishment phase is

determined by what is helpful to the jury).        The fact that the video depicts

Buchanan having sex with A.B. without her consent and while she was

incognizant—circumstances similar to those of the charged offense—makes it

relevant because it is probative of Buchanan’s character and established a pattern

of conduct that may have informed the jury’s decision. See Sanders v. State, 422

S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d) (evidence relating to

sexual offense with child relevant because helped define appellant’s character,

showed another example of criminal act, and helped establish pattern of criminal

conduct that may have informed jury’s decision).

      The video was also admissible despite Buchanan’s Rule 403 objection. See

Gigliobianco v. State, 210 S.W.3d 637, 641–42, n.8 (Tex. Crim. App. 2006)

(describing 4-factor balancing test).   Here, the video was highly probative of

Buchanan’s character and thus helpful to the jury’s task of tailoring an appropriate

sentence. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1); Erazo, 144

S.W.3d at 491. The fact that the video would likely raise emotional responses in

the jury does not in itself demonstrate that it would impress the jury in some


                                        12
irrational way, and Buchanan fails to argue how it may have done so. The time

needed to develop the evidence was not significant: the jury viewed the 20-minute

video once during the five-day trial. We thus conclude that the video’s probative

value was not substantially outweighed by the danger of unfair prejudice. See TEX.

R. EVID. 403. Accordingly, we hold that the trial court did not abuse its discretion

in admitting the video. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (providing for

admission of any matter trial court deems relevant to sentencing); Casey v. State,

215 S.W.3d 870, 884 (Tex. Crim. App. 2007) (no abuse of discretion in admitting

photographs of unconscious women having sexual act performed on them in case

where complainant was drugged and unconscious during sexual assault).

      We overrule Buchanan’s second issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                Rebeca Huddle
                                                Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           13
