                                                                                        ACCEPTED
                                                                                    01-14-00721-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               5/8/2015 11:02:13 AM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK

                          No. 01-14-00721-CR
                                  In the
                         COURT OF APPEALS                        FILED IN
                                                          1st COURT OF APPEALS
                                 For the                      HOUSTON, TEXAS
                      FIRST JUDICIAL DISTRICT             5/8/2015 11:02:13 AM
                               At Houston                 CHRISTOPHER A. PRINE
                                                                  Clerk


JAMES JORDAN                         '                        APPELLANT

V.                                   '

THE STATE OF TEXAS                   '                        APPELLEE


       APPEAL FROM THE 240TH JUDICIAL DISTRICT COURT
                 FORT BEND COUNTY, TEXAS
               TRIAL COURT NO. 13-DCR-062954B


                             STATE’S BRIEF

                   Counsel for Appellee, The State of Texas
                            JOHN F. HEALEY
                           DISTRICT ATTORNEY
                      FORT BEND COUNTY, TEXAS
                 301 Jackson Street, Richmond, Texas 77469
                  (Tel.) 281-341-4460/(Fax) 281-238-3340

                           JASON BENNYHOFF
                     ASSISTANT DISTRICT ATTORNEY
                       FORT BEND COUNTY, TEXAS
                  301 Jackson Street, Richmond, Texas 77469
(Tel.) 281-341-4460/(Fax) 281-238-3340/jason.bennyhoff@fortbendcountytx.gov

                 ORAL ARGUMENT NOT REQUESTED




                                     i
                       IDENTIFICATION OF PARTIES

      Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all

interested parties is provided below so the members of this Honorable Court may

at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case.

Appellant:
JAMES JORDAN

Appellee:
THE STATE OF TEXAS

Counsel for Appellant:
LASHAWN WILLIAMS
(AT TRIAL AND ON APPEAL)

Address(es):
1776 Yorktown, Suite 350
Houston, Texas 77056

Counsel for Appellee/State:
JOHN F. HEALEY, JR.
District Attorney of Fort Bend County, Texas
Fort Bend County District Attorney’s Office

Address(es):
301 Jackson Street, Rm 101
Richmond, Texas 77469

IDENTIFICATION OF PARTIES (cont.)

STUTI PATEL AND ZAHRA JIVANI-FENELON
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)



                                         ii
JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)

JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.

Trial Judge:
The Hon. Lee Duggan, Jr., sitting by assignment of the presiding judge
240th Judicial District Court
Fort Bend County, Texas

The Hon. Thomas R. Culver, III
Presiding Judge, 240th Judicial District Court
Fort Bend County, Texas




                                       iii
                                           TABLE OF CONTENTS

SECTION                                                                                                                 PAGE

IDENTIFICATION OF PARTIES ............................................................................ ii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES .....................................................................................vi

STATEMENT REGARDING ORAL ARGUMENT ................................................ix

STATEMENT OF THE CASE................................................................................... 1

ISSUES PRESENTED BY APPELLANT ................................................................ 2

STATEMENT OF FACTS ......................................................................................... 3

SUMMARY OF THE ARGUMENT ......................................................................... 7

RESPONSE TO APPELLANT’S FIRST POINT OF ERROR

        THE TRIAL COURT DID NOT ERR BY DENYING APPELLANT’S
        MOTION FOR A NEW TRIAL BASED ON SUPPOSED JUROR
        MISCONDUCT

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

        Standard of Review.......................................................................................... 9

        Argument and Authorities.............................................................................. 10

RESPONSE TO APPELLANT’S SECOND AND THIRD POINTS OF ERROR

        APPELLANT’S CLAIM THAT HE WAS NOT MADE AWARE THAT
        THE COMPLAINANT WAS TRANSGENDERED DOES NOT
        ESTABLISH A BRADY VIOLATION NOR HAS APPELLANT
        ESTABLISHED THAT THIS INFORMATION WAS MATERIAL, AND
        THIS DOES NOT CONSTITUTE NEW EVIDENCE NECESSITATING A
        NEW TRIAL

                                                               iv
     ....................................................................................................................... 13

    Standard of Review........................................................................................ 13

    Argument and Authorities.............................................................................. 14

RESPONSE TO APPELLANT’S FOURTH POINT OF ERROR

    APPELLANT WAIVED ANY COMPLAINT REGARDING THE
    PROPRIETY OF THE ENHANCEMENT PARAGRAPHS, AND EVEN
    PRESUMING NON-WAIVER THERE WAS NO ERROR AND
    APPELLANT’S POINT OF ERROR IS MULTIFARIOUS AND SHOULD
    BE DISREGARDED

     ....................................................................................................................... 16

    Standard of Review........................................................................................ 16

    Argument and Authorities.............................................................................. 16

RESPONSE TO APPELLANT’S FIFTH POINT OF ERROR

    APPELLANT HAS WAIVED HIS ARGUMENT THAT THE TRIAL
    COURT ERRED IN ALLOWING A PORTION OF THE TRANSCRIPT TO
    BE READ BACK TO THE JURORS, AND THE TRIAL COURT DID NOT
    ERR IN ANY EVENT BECAUSE THE JURORS EXPRESSED A
    DISPUTE

     ....................................................................................................................... 23

    Standard of Review........................................................................................ 24

    Argument and Authorities.............................................................................. 24

PRAYER        ............................................................................................................. 27




                                                           v
                                        INDEX OF AUTHORITIES

Cases

Barnes v. University Federal Credit Union, No. 03-10-00147-CV, 2013 WL
 1748788 (Tex. App.—Austin Apr. 18, 2013, no pet.) ...........................................12
Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. App. 1985) ................................15
Brooks v. State, 642 S.W.2d 791, 793 (Tex. Crim. App. 1982) ...............................17
Cisneros v. State, No. 14-00-01236-CR (Tex. App.—Houston [14th Dist.] May 2,
 2002, pet. ref’d).....................................................................................................12
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) ............................ 9-11
Contreras v. State, 369 S.W.3d 689, 690 (Tex. App.—Tyler 2012, no pet.) ...........21
Cook v. State, 256 S.W.3d 846, 851 (Tex. App.—Texarkana 2008, no pet.) ...........18
Davila v. State, 930 S.W.2d 641, 654 (Tex. App.—El Paso 1996, pet. ref’d) .........22
Diaz-Galvan v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997,
 pet. ref’d) ...............................................................................................................23
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) ..............................13
Harmelin v. Michigan, 501 U.S. 957 (1991) ...........................................................21
Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) ...............................18
Hurst v. State, No. 12-07-00060-CR, 2008 WL 2814819 (Tex. App.—Tyler Jul. 23,
 2008, no pet.).........................................................................................................22
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) ...............................21
Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002) ........................................9
Lockyer v. Andrade, 538 U.S. 63, 73 (2003)............................................................21
Matthews v. State, No. 03-13-00037-CR, 2014 WL 7466653 (Tex. App.—Austin
 Dec. 23, 2014, pet. ref’d) ......................................................................................12
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992) ........................................21

                                                             vi
McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012) ..................... 9-12
Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet.
 ref’d)......................................................................................................................25
Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet.
 ref’d)......................................................................................................................24
Rivera v. State, 808 S.W.2d 80, 95 (Tex. Crim. App. 1991) ....................................17
Roberson v. State, 371 S.W.3d 557, 560 (Tex. App.—Houston [1st Dist.] 2012 ....18
Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App. 1994)..............................24
Rummel v. Estelle, 445 U.S. 263 (1980) ..................................................................22
Ryser v. State, 453 S.W.3d 17, 41 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
  .............................................................................................................. 9, 10, 12, 13
Scoggins v. State, No. 09-11-00598-CR, 2013 WL 3354220 at *4-5 (Tex. App.—
 Beaumont Jun. 26, 2013, pet. ref’d) .....................................................................20
Solem v. Helm, 463 U.S. 277, 290 (1983) ................................................................21
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ...................................16
State v. Richardson, 439 S.W.3d 403, 404 (Tex. App.—Fort Worth 2014, pet. ref’d)
  .................................................................................................................. 16, 18, 19
Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d) ..... 18, 19
United States v. Agurs, 427 U.S. 97, 112-13 (1976) ................................................14
Weeks v. State, No. 06-12-00110-CR, 2013 WL 557015 at *10 (Tex. App.—
 Texarkana Feb. 14, 2013, no pet.) .........................................................................23
Wilkerson v. State, 391 S.W.3d 190, 199-200 (Tex. App.—Eastland 2012, pet.
 dism’d untimely filed) ...........................................................................................18
Williams v. State, 605 S.W.2d 596 (Tex. Crim. App. 1980) .....................................17
Wooten v. Sourthen Pacific Transp. Co., 928 S.W.2d 76, 79 (Tex. App.—Houston
 [14th Dist.] 1995, no pet.) ..................................................................................... 11



                                                              vii
Statutes
Tex. Pen. Code §12.32(a) .........................................................................................22

Tex. Pen. Code §12.32(b).........................................................................................22

Tex. Pen. Code §12.41(1).........................................................................................19
Tex. Pen. Code §12.42(d).................................................................................. 20, 22
Tex. Pen. Code §30.02(d).........................................................................................21
Tex. Code Crim. Proc. §36.28........................................................................... 25, 26
Tex. Code Crim. Proc. §40.001................................................................................15
Tex. R. App. 33.1(a) .................................................................................................24




                                                          viii
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. P. 39, the State does not request oral argument

unless granted to Appellant.




                                        ix
                             No. 01-14-00721-CR
                                     In the
                            COURT OF APPEALS
                                    For the
                         FIRST JUDICIAL DISTRICT
                                  At Houston


JAMES JORDAN                            '                      APPELLANT

V.                                      '

THE STATE OF TEXAS                      '                      APPELLEE


        APPEAL FROM THE 240TH JUDICIAL DISTRICT COURT
                  FORT BEND COUNTY, TEXAS
                TRIAL COURT NO. 13-DCR-062954B

                         STATEMENT OF THE CASE

      Appellant was charged in this cause number with the offense of burglary of a

habitation with the intent to commit sexual assault. (1CR6). Appellant pled not

guilty and proceeded to a trial by jury. (3RR186). Appellant was found guilty of

burglary of a habitation with the intent to commit sexual assault by the jury.

(1CR45). Appellant then proceeded to a contested punishment phase tried to the

jury, and the jury, after finding several enhancement paragraphs true, assessed a

sentence of 30 years’ confinement in the Texas Department of Criminal Justice –

Institutional Division. (1CR61-62). Appellant filed a motion for new trial, and an

amended motion for new trial. (1st Supp. CR49; 1CR73). The trial court held a


                                        1
hearing on that motion for new trial, and ultimately denied the motion. (1CR123).

This appeal follows. (1CR126).

                       ISSUES PRESENTED BY APPELLANT

      I.      “Whether the denial of Appellant’s Motion for New Trial was
           reversible error in that it violated the Fifth, Sixth, Eighth and Fourteenth
           Amendments of the United States Constitution and Texas Constitution,
           and specifically:

           a.       “Whether Appellant was deprived of his rights to due process and a
                fair and impartial trial due to the misconduct of a juror during guilt
                phase deliberations, wherein said juror reenacted and recreated the
                crime scene and then shared her demonstration and conclusions with
                fellow jurors, thereby influencing their vote.

           b.    “Whether Appellant was deprived of his rights to due process and a
                fair and impartial trial when in violation of Brady the prosecutor
                deliberately withheld the legal identity, including legal name and
                gender, of the complaining witness.

           c. “Whether the legal identity of the complainant discovered after trial is
              considered new evidence that would have resulted in a different trial
              result thereby justifying a new trial.

           d.    “Whether the jury charge of the court on enhancement of the
                punishment was improper because prior convictions for non-
                aggravated state jail felonies cannot be used to enhance other felonies.

           e. “Whether the reading back of witness testimony was improper
              because the jury notes never clearly delineated a disputed issue, as
              required by Texas law, and because only the direct examination
              portion was read back to the jury whereas both direct and cross
              examination portions should have been included.”

App. Br. at p. 3-4.




                                            2
                            STATEMENT OF FACTS

      The Underlying Offense

      Lupe Valdez (Valdez) heard someone pounding on her door and screaming

that her vehicle was about to be towed late at night. (4RR73-75). Valdez opened

the door to find Appellant, whom she had been approached by several days earlier.

(4RR75-76). Appellant asked Valdez if he could come inside and put his foot in

the door after being told “no.” (4RR76-77). Appellant then forced his way into

Valdez’s apartment. (4RR77).

      Appellant choked Valdez with a black cloth and forced Valdez into the

bedroom, where Appellant attempted to sexually assault Valdez. (4RR84-85).

Unbeknownst to Appellant, Valdez had managed to bring a cell phone into the

bedroom and called 911 as the assault was taking place. (4RR88). The police

arrived at the apartment just after Appellant discovered that Valdez had called 911.

(4RR102-03).

      Jury Deliberations

      During the jury’s deliberations, the jury sent out a series of questions, and

the trial court gave a series of responses to those questions. (1CR48-54). The first

question and response read, in relevant part:

      Question: We would like to see the transcript of Mr. Bibbins (Christopher)

testimony.


                                          3
      Response:    If you are in dispute … as to some portion of a witness’s

testimony, please tell us (1) the name of the witness; (2) what testimony you are in

disagreement about; and – helpfully, which lawyer was questioning the witness at

that time.

(1CR48).

      The jury sent out a second question, and the trial court responded. (1CR51-

52). The question and response read, in relevant part:

      Question: We would like Lupe Valdez’s testimony regarding when Mr.

Jordan first arrived at her home and up until they went to the bedroom and we

would like Lupe Valdez’s testimony of her first encounter with Mr. Jordan, the first

approach in October/November 2012.

(1CR51).

      Response: Please explain in more detail what you are in dispute about in

your 1st question …. We understand your 2nd question and the Reporter will read

you her notes on that.

(1CR52).

      The jury sent out a third question, which was not responded to in writing,

which read as follows:




                                         4
      Question: We want to know what Lupe Valdez said about when Mr. Jordan

exposed himself. We also want to know what Mr. Jordan said to her (her account)

upon entering the apartment.

(1CR53).

      Appellant made no objection on the record to the trial court’s responses to

the jury’s questions until after those responses were made. (8RR4). Appellant’s

trial counsel stated “we believe that having read the testimony before the jury on

Friday was in error….” (8RR4). The trial court asked Appellant’s counsel if she

had heard what was to be read to the jury prior to its being read, and Appellant’s

trial counsel acknowledged that this objection was not made previously and in fact

not prior to the jury returning a verdict. (8RR5-6).

      The record does not reflect exactly what was read back to the jury, but the

State’s attorney stated that Appellant’s attorney agreed to reading back the portion

of the record that was read back to the jury, and Appellant’s counsel did not

contradict that statement. (8RR7-8).

      The Punishment Phase

      Appellant pled “guilty” to the enhancement paragraphs in the indictment.

(9RR16-17). Appellant did not object to the admission of the judgments and

sentences of his prior convictions. (9RR25). The court’s charge on punishment

reflected that Appellant pled “true” to the enhancement paragraphs and provided


                                          5
the jury with a punishment range of 25-99 years or life in prison. (1CR58).

Appellant did not object to the enhancement portion of the jury charge and stated

that it was acceptable to the defense. (10RR4). Appellant acknowledged during

closing argument that the punishment range was 25-99 years and that Appellant

had pled true to the enhancements. (10RR10-11).

      The jury returned a sentence of 30 years’ confinement. (11RR4).

      The Motion for New Trial

      The foreperson of the jury testified that juror number 42 had conducted an

experiment with her husband during a break in deliberations. (Mtn. for New Trial

transcript 64-65). The foreperson testified that juror number 42 said she had her

husband throw her on her bed, and place her on her bed in order to see which

scenario looked more like the crime scene photos. (Mtn. for New Trial transcript

64-65). The foreperson testified that this reenactment had an effect on her and the

other jurors and affected their verdict. (Mtn. for New Trial transcript 72-74).

      The trial court entered findings of fact and conclusions of law. (2nd Supp.

CR 4-12). The trial court concluded that the juror’s experiment was not an outside

influence. (2nd Supp. CR 10). The trial court concluded that this experiment did

not have the kind of effect on the hypothetical average juror to necessitate a new

trial. (2nd Supp. CR 10).




                                          6
                       SUMMARY OF THE ARGUMENT

      Appellant brings a single point of error arguing that the trial court erred in

denying his motion for new trial for various reasons. Although Appellant titles his

arguments as one point of error with distinct subparts, the State will address them

as separate points of error as this seems more accurately to reflect the substance

and intent of Appellant’s brief.

      Appellant first argues that an experiment conducted by a juror during

deliberations constituted an outside influence and that this necessitates a new trial.

The experiment here was conducted by the juror and reflected her thought process

and therefore does not constitute an outside influence.

      Appellant argues in his second and third points of error that the fact that the

complainant was transgendered, and that he was not specifically notified of this

fact pre-trial constitutes a Brady violation and/or new evidence necessitating a new

trial. Because these points of error are so closely related, the State addresses them

together. The complainant’s identifying as transgender is not exculpatory nor

mitigating, and therefore no Brady violation occurred. Further, Appellant does not

even attempt to show how such information was material even presuming it could

be exculpatory or mitigating.      Finally, this does not constitute new evidence

necessitating a new trial under the governing statute.




                                          7
      Appellant’s fourth point of error argues that his punishment was improperly

enhanced because some of the offenses of which he was convicted in Louisiana

would have constituted state jail felonies in Texas.          The offenses of which

Appellant was convicted in Louisiana were felonies under Louisiana law and

because confinement in the penitentiary was a possible sanction, they constitute at

least third degree felonies under the governing Texas statute.              Appellant’s

enhancement was therefore proper.

      Appellant’s fifth and final point of error argues that the trial court abused its

discretion by reading back a portion of the trial testimony to the jury when there

was no dispute as to that testimony. Appellant has waived this argument by not

objecting to the reading back of the testimony until after the testimony was read

back. Appellant has also failed to bring a sufficient record to show error. Based on

the record as it exists, the trial court’s actions are in keeping with, and quite similar

to those approved by the Court of Criminal Appeals in another case and therefore

the trial court did not abuse its discretion in having the testimony read back.




                                            8
      Response to Appellant’s First Point of Error

       THE TRIAL COURT DID NOT ERR BY DENYING APPELLANT’S
        MOTION FOR A NEW TRIAL BASED ON SUPPOSED JUROR
                          MISCONDUCT

                               Standard of Review

      A ruling on a motion for new trial will not be disturbed absent an abuse of

discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). “At a

motion for new trial hearing, the judge alone determines the credibility of the

witnesses.   Even if the testimony is not controverted or subject to cross

examination, the trial judge has discretion to disbelieve that testimony.” Colyer v.

State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).

      “Outside influences do not result in automatic reversals.” Ryser v. State, 453

S.W.3d 17, 41 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). Reviewing courts

do not consider the impact of outside influences on individual jurors, but instead

use an objective reasonable person test to decide what effect an outside influence

would have had on the hypothetical average juror. Colyer, 428 S.W.3d at 129. An

outside influence will necessitate a new trial where “there is a ‘reasonable

possibility that it had a prejudicial effect’ by impacting the verdict, which [the

reviewing court] answer[s] by using the objective standard of a hypothetical

average juror.” Ryser, 453 S.W.3d at 41 quoting McQuarrie v. State, 380 S.W.3d

145, 150 (Tex. Crim. App. 2012).


                                         9
                            Argument and Authorities

      Appellant argues that a juror’s experiment in recreating the crime scene

while the jurors were separated constitutes an outside influence necessitating a new

trial. App. Br. at p. 27. The trial court held otherwise that the experiment here did

not constitute an outside influence, and further that it would not have impacted the

hypothetical average juror to the degree necessary to require a new trial. The trial

court did not abuse its discretion in so holding.

       Appellant’s argument is premised on the notion that the juror’s conduct in

this case is analogous to the facts in McQuarrie, wherein the Court of Criminal

Appeals held that a juror’s sharing his research on the internet into the effects of

date rape drugs was an outside influence requiring the trial court to allow the

movant to engage in a post-trial inquiry. McQuarrie, 380 S.W.3d at 155. It should

be noted that the McQuarrie Court did not hold that a new trial was required, only

that the trial court was required to hold a hearing on the motion for new trial and

allow the movant to present his evidence in support of his motion for new trial. Id.

      The State’s position is that the facts of this case are more analogous to the

scenarios in the line of cases which have found similar acts not to be outside

influences, or at least more analogous to the line of cases which did not find that

such outside influences required new trials, including Ryser, from this Court. The

State would also point out that the Court of Criminal Appeals’ opinion in Colyer


                                          10
has pointed out that the impact of McQuarrie is not so sweeping as Appellant

would posit, and in that opinion the Court of Criminal Appeals affirmed the

continuing viability of several pre-McQuarrie precedents. Colyer, 428 S.W.3d at

128-30. As such, the trial court did not abuse its discretion in holding that the

juror’s experiment was not an outside influence, and even if it were, that it was not

of such a nature as to require a new trial.

      While it is true that McQuarrie expanded the definition of what constituted

an outside influence, it still involved a scenario where a juror obtained information

from an outside source and then presented it to the jury. McQuarrie, 380 S.W.3d at

148. This is not the situation here. Here, the juror engaged in her own experiment,

without obtaining any information from any other source, and drew her own

conclusions from that experiment. That experiment was about how a bed would

look whether a person fell on it or laid down on it; the kind of thing which would

be within the ordinary experience of an ordinary person and not the type of thing

that would require more than ordinary logic to discern.

      There is precedent to support the trial court’s conclusion that this did not

constitute an impermissible outside influence.      See, e.g., Wooten v. Sourthen

Pacific Transp. Co., 928 S.W.2d 76, 79 (Tex. App.—Houston [14th Dist.] 1995, no

pet.) (juror’s opinion about safety of intersection which came from his own

experiences at that intersection not an outside influence); Matthews v. State, No.


                                              11
03-13-00037-CR, 2014 WL 7466653 (Tex. App.—Austin Dec. 23, 2014, pet. ref’d)

(not designated for publication) (juror sharing her opinions about how CPS worked

based on knowledge she obtained through her employment at juvenile facility did

not constitute outside influence) (not designated for publication); Barnes v.

University Federal Credit Union, No. 03-10-00147-CV, 2013 WL 1748788 (Tex.

App.—Austin Apr. 18, 2013, no pet.) (not designated for publication) (juror’s

analysis of properly admitted credit report based on juror’s own expertise was not

an outside influence); Cisneros v. State, No. 14-00-01236-CR (Tex. App.—

Houston [14th Dist.] May 2, 2002, pet. ref’d) (not designated for publication)

(jurors’ experiments on whether they could breathe with baggie similar to that used

to hold narcotics in their mouths not an outside influence).

      Even presuming that the experiment conducted here constituted an outside

influence, the trial court did not abuse its discretion in holding that such an outside

influence did not require a new trial. This is a position supported by the case law,

including McQuarrie and Ryser from this Court. Again, McQuarrie, even where it

held that the juror’s internet research was an outside influence, did not require a

new trial, only that the applicant be given an opportunity to have a full hearing on

the outside influence. McQuarrie, 380 S.W.3d at 155. In Ryser, this Court held

that a juror’s looking up the definition of a word not defined in the jury charge was




                                          12
an outside influence, but that this did not require a new trial. Ryser, 453 S.W.3d

17, 42-43.

      This Court should therefore hold that the experiment conducted here did not

constitute an outside influence, or that even if it was an outside influence, it was

not so harmful as to require a new trial. Appellant’s first point of error should be

overruled.

      Response to Appellant’s Second and Third Points of Error

APPELLANT’S CLAIM THAT HE WAS NOT MADE AWARE THAT THE
 COMPLAINANT WAS TRANSGENDERED DOES NOT ESTABLISH A
BRADY VIOLATION NOR HAS APPELLANT ESTABLISHED THAT THIS
INFORMATION WAS MATERIAL, AND THIS DOES NOT CONSTITUTE
        NEW EVIDENCE NECESSITATING A NEW TRIAL

                                Standard of Review

      To find reversible error under Brady, the defendant must show that: (1) the

State failed to disclose evidence, regardless of good or bad faith; (2) the withheld

evidence is favorable to him; (3) and that the evidence is material, that is, that there

is a reasonable probability that had the evidence been disclosed, the outcome of the

trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002). When claiming that exculpatory evidence was not disclosed in a

timely fashion, the defendant bears the burden to show that, in light of all of the

evidence, it is reasonably probable that the outcome of the trial would have been

different had the prosecutor made a timely disclosure. Id. “The mere possibility


                                           13
that an item of undisclosed information might have helped the defense, or might

have affected the outcome of the trial, does not establish ‘materiality’ in the

constitutional sense.” Id., quoting United States v. Agurs, 427 U.S. 97, 112-13

(1976).

                            Argument and Authorities

       Appellant claims that the complainant’s biological gender was “favorable”

to him. App. Br. at p. 33. Appellant also claims that this fact was material because

“the state thought so because they withheld it.” App. Br. at p. 33.

      Appellant’s claims are simply bald statements with no legal support

whatsoever. Appellant cites no authority for the proposition that a transgendered

person’s biological gender is an exculpatory or mitigating fact and the State has

found no authority for this proposition.

      It should be noted that the indictment correctly identifies the complainant by

her legal name (though it does not include a middle name). Appellant attempts

only to analogize the fact that the complainant’s gender was not affirmatively

pointed out as being analogous to the concealment of the identity of a confidential

informant. App. Br. at p. 33. These situations are inapposite being that the

complainant in this case testified and was subject to cross examination, and

Appellant had access to the complainant’s true identity.




                                           14
      To the degree that Applicant’s claim can be characterized as a claim of

newly discovered evidence, it must also fail.           The Texas Code of Criminal

Procedure mandates that a “new trial shall be granted an accused where material

evidence favorable to the accused has been discovered since trial.” Tex. Code

Crim. Proc. art. 40.001. In this context, the newly discovered evidence must

satisfy four requirements before an accused will be entitled to a new trial: (1) the

evidence was unknown to the movant before trial; (2) the defendant’s failure to

discover it was not due to a want of diligence on his part; (3) its materiality was

such as would probably bring about a different result in another trial, and; (4) it

was competent, not merely cumulative, corroborative, collateral, or impeaching.

Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. App. 1985).

      Appellant makes no attempt to satisfy the Boyett factors, and even a cursory

examination of them makes clear that he cannot do so even had he tried. By

Appellant’s admission, he became aware that the complainaint was a man during

the trial. App. Br. at p. 17. However, Appellant did not make a motion for a

continuance as a result of this discovery. This failure to make such a motion

constitutes waiver, or at least establishes a want of diligence under Boyett.

      Appellant does not even attempt to explain how this information was

material other than to argue that it must have been material or the state would have

pointed it out. App. Br. at p. 33. This is insufficient to establish materiality.


                                           15
      At best, even presuming a person’s having identified himself as

transgendered could be Brady material, it would be at most impeaching (as

Appellant impliedly concedes). App. Br. at p. 38. As such, it is not material under

Boyett. Boyett, 692 S.W.2d at 516. Appellant has failed to establish any Brady

violation, and also failed to establish the materiality of any supposedly wrongfully

withheld information. In light of this, it can hardly be said that the trial court

abused its discretion in denying his motion for new trial on that ground.

      Appellant’s second point of error should be overruled.

Response to Appellant’s Fourth Point of Error

        APPELLANT WAIVED ANY COMPLAINT REGARDING THE
      PROPRIETY OF THE ENHANCEMENT PARAGRAPHS, AND EVEN
         PRESUMING NON-WAIVER THERE WAS NO ERROR AND
         APPELLANT’S POINT OF ERROR IS MULTIFARIOUS AND
                    SHOULD BE DISREGARDED

                               Standard of Review

       Whether an offense from a foreign jurisdiction constitutes a felony for the

purposes of enhancement is a question of law and is therefore reviewed de novo.

State v. Richardson, 439 S.W.3d 403, 404 (Tex. App.—Fort Worth 2014, pet. ref’d)

citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

                            Argument and Authorities

      Appellant argues that his Louisiana priors used for enhancement are not

enhanceable under Texas law and that his sentence is cruel and unusual under the


                                         16
Eighth Amendment to the United States Constitution. App. Br. at pp. 40-41.

Appellant’s point of error is multifarious and should not be considered on its

merits. Even if it is considered on its merits, Appellant has waived his argument

that his Louisiana priors are not enhanceable offenses. Even presuming that such

error has not been waived, the judgments are not of the kind which is immediately

apparent to be improper for enhancement purposes and therefore the judgment

should stand. Appellant’s punishment is also not cruel and unusual as it is well

within the statutorily prescribed punishment range.

      Multifarious point of error

      Appellant’s point of error alleges two separate and distinct grounds for

relief. App. Br. at pp. 40-41. By combining more than one alleged error in a single

ground, Appellant has presented a point of error that is multifarious and therefore,

presents nothing for review. Rivera v. State, 808 S.W.2d 80, 95 (Tex. Crim. App.

1991); Brooks v. State, 642 S.W.2d 791, 793 (Tex. Crim. App. 1982); Williams v.

State, 605 S.W.2d 596 (Tex. Crim. App. 1980). Nonetheless, the State will address

Appellant’s arguments individually out of an abundance of caution should this

Court decide to consider them on their merits.

      The Louisiana priors

      A defendant’s plea of true to an enhancement relieves the State of its burden

to prove habitual offender status and the defendant waives any complaint that the


                                         17
evidence is insufficient to support the habitual offender allegation. Roberson v.

State, 371 S.W.3d 557, 560 (Tex. App.—Houston [1st Dist.] 2012, aff’d, 420

S.W.3d 832 (Tex. Crim. App. 2013) citing Harvey v. State, 611 S.W.2d 108, 111

(Tex. Crim. App. 1981); Cook v. State, 256 S.W.3d 846, 851 (Tex. App.—

Texarkana 2008, no pet.). However, there is authority for the proposition that a

complaint regarding the propriety of prior convictions used for enhancement is not

waived where the record affirmatively demonstrates that an enhancement is

improper. Wilkerson v. State, 391 S.W.3d 190, 199-200 (Tex. App.—Eastland

2012, pet. dism’d untimely filed).

      The State argues that Appellant waived any complaint regarding the

propriety of his enhancements by not objecting to them at the trial stage and in fact

pleading true to them. The State would further argue that even under Wilkerson’s

reasoning, the offenses herein are not affirmatively demonstrated in the record not

to be enhanceable convictions and therefore the enhancement is proper.

      In this vein, it should be noted that Texas cases have held that similar

offenses (including similar Louisiana offenses) are enhanceable felonies under

similar circumstances. See Richardson, 439 S.W.3d at 407 (Iowa conviction for

operating a vehicle while intoxicated, unintentionally causing injury qualified as

third degree felony because imprisonment in the penitentiary was a possible

punishment; Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet.


                                         18
ref’d) (“[f]or the purpose of enhancing punishment, an out-of-state conviction is

classified as a third degree felony when confinement in a penitentiary is affixed to

the offense as a possible punishment”) (internal quotation marks omitted). The

holdings in Richardson and Trotti are in fact merely a straightforward application

of Texas Penal Code section 12.41(1), which states in relevant part that “any

conviction not obtained from a prosecution [under the Texas Penal Code] shall be

classified as … [a] ‘felony of the third degree’ if imprisonment in the …

penitentiary is affixed to the offense as a possible punishment….”

      As Appellant concedes, the offenses of attempted simple escape and cocaine

possession are considered felonies by the state of Louisiana, and are subject to

imprisonment at hard labor.       App. Br. at p. 40.       Further, the judgments of

Appellant’s enhancement priors from Louisiana, contained in exhibit 24, all reflect

that Appellant was sentenced to “imprisonment at hard labor,” and that he is to be

delivered to the Louisiana Department of Corrections. Therefore, under Louisiana

law, it is a fair reading that all of these offenses are felonies, and are all subject to

imprisonment in the penitentiary. Combining this with the definition of a third

degree felony in Penal Code section 12.41(1) and the case law interpreting that

section, which mandates that an offense from a foreign jurisdiction is to be treated

as a third degree felony where imprisonment may be affixed as a possible




                                           19
punishment, it is a logical conclusion that all of these offenses qualified as felonies

for enhancement purposes.

      Appellants’ claim that several of these offenses would be state jail offenses

under Texas law (even presuming this claim is correct) is also insufficient to secure

a reversal here in light of the governing statute and the case law. See Cook, 256 at

851 (substantial similarity requirement does not apply to enhancements under

Penal Code section 12.42(d); Scoggins v. State, No. 09-11-00598-CR, 2013 WL

3354220 at *4-5 (Tex. App.—Beaumont Jun. 26, 2013, pet. ref’d) (not designated

for publication) (unauthorized use of a motor vehicle offense from Louisiana

qualified as a felony for enhancement purposes).

      Appellant has failed to show that his enhancements were improper and

therefore his fourth point of error should be overruled.

      Cruel and Unusual Punishment

      Appellant also argues that his punishment is cruel and unusual and violates

the Eighth Amendment to the United States Constitution. App. Br. at p. 41.

Appellant’s claim of cruel and unusual punishment should fail because the

punishment assessed is well within the statutorily prescribed range of punishment.

      Texas courts have traditionally followed the general rule that so long as the

punishment assessed is within the range prescribed by the Legislature in a valid

statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v.


                                          20
State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).            However, the Eighth

Amendment to the United States Constitution’s prohibition on cruel and unusual

sentences can still invalidate a sentence even when it is within the statutory range.

See Solem v. Helm, 463 U.S. 277, 290 (1983), modified by Harmelin v. Michigan,

501 U.S. 957 (1991) (plurality op.). The Eighth Amendment only prohibits grossly

disproportionate sentences, and that prohibition is “applicable only in the

‘exceedingly rare’ and ‘extreme’ case.” Lockyer v. Andrade, 538 U.S. 63, 73

(2003) (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)).

      Where the grossly disproportionate analysis applies, a three part test is used

to determine whether a sentence is violative of the Eighth Amendment. Solem, 463

U.S. at 292. The test requires the appellate court to make an initial threshold

comparison of the gravity of the offense with the severity of the sentence and then,

only if that initial comparison created an inference that the sentence was grossly

disproportionate to the offense, consider (1) sentences for similar crimes in the

same jurisdiction and (2) sentences for the same crime in other jurisdictions. See

McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Contreras v. State, 369

S.W.3d 689, 690 (Tex. App.—Tyler 2012, no pet.).

      The offense of burglary of a habitation with intent to commit sexual assault

is a first degree felony. Tex. Pen. Code §30.02(d). A person adjudged guilty of a

first degree felony offense is subject to punishment of a term of confinement for


                                         21
life or for any term of not more than 99 years or less than five years. Tex. Pen.

Code §12.32(a). A person convicted of a first degree felony may also be assessed a

fine not to exceed $10,000. Tex. Pen. Code §12.32(b). A habitual felony offender

shall be subject to a term of confinement of not more than 99 years or less than 25

years. Tex. Pen. Code §12.42(d).

      Appellant was sentenced as a habitual felony offender and ordered to serve

a term of confinement of 30 years in the penitentiary. (1CR62). This sentence was

well within the statutorily prescribed range. Appellant’s sentence should therefore

be considered presumptively reasonable and not cruel and unusual nor grossly

disproportionate.

      Appellant cannot meet the threshold determination that the severity of the

sentence was grossly disproportionate to the gravity of the offense because

Appellant was sentenced to only five years more than the statutory minimum

confinement in a case where he committed a violent, sexually oriented first degree

felony and was a habitual felony offender with a lengthy rap sheet. See Rummel v.

Estelle, 445 U.S. 263 (1980) (mandatory life sentence for obtaining $120.75 by

false pretenses not cruel and unusual where defendant was habitual offender);

Davila v. State, 930 S.W.2d 641, 654 (Tex. App.—El Paso 1996, pet. ref’d); Hurst

v. State, No. 12-07-00060-CR, 2008 WL 2814819 (Tex. App.—Tyler Jul. 23, 2008,

no pet.) (not designated for publication)


                                            22
      Further, Appellant has failed to introduce evidence of sentences for similar

crimes in any jurisdiction and therefore cannot carry his burden to show that his

sentence was disproportionate to other sentences for similar crimes. Diaz-Galvan

v. State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d);

Weeks v. State, No. 06-12-00110-CR, 2013 WL 557015 at *10 (Tex. App.—

Texarkana Feb. 14, 2013, no pet.) (not designated for publication).

      Appellant’s fourth point of error should be overruled.

Response to Appellant’s Fifth Point of Error

        APPELLANT HAS WAIVED HIS ARGUMENT THAT THE TRIAL
            COURT ERRED IN ALLOWING A PORTION OF THE
        TRANSCRIPT TO BE READ BACK TO THE JURORS, AND THE
         TRIAL COURT DID NOT ERR IN ANY EVENT BECAUSE THE
                   JURORS EXPRESSED A DISPUTE


      Appellant argues in his fifth point of error that the trial court erred by

allowing a portion of the trial transcript to be read back to the jurors when a

dispute was not clearly established by the jury, and that this was also erroneous

because only part of the examination was read back. Appellant has waived this

argument by not objecting prior to this testimony being read back to the jury. Even

presuming the argument has not been waived, the jury did establish a dispute in

part of the note in question, and only the portion of the record relevant to that

dispute was read to them.



                                         23
                               Standard of Review

      A trial court’s decision to allow testimony to be read back to the jury is

reviewed for an abuse of discretion. Robison v. State, 888 S.W.2d 473, 480 (Tex.

Crim. App. 1994).

                            Argument and Authorities

      Waiver

      Appellant did not raise this objection in the trial court prior to the testimony

being read to the jury and does not include any citation in his brief to any point in

the record where such an objection was made. App. Br. at p. 42. Where an

objection is not made in the trial court and the trial court does not rule on that

objection, the issue is waived, even where it is an issue of constitutional

dimension. Tex. R. App. 33.1(a); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d).

      Because Appellant did not properly preserve this issue, it should be

considered waived and overruled without consideration of the merits.            Even

presuming the issue was properly preserved, it should still be overruled as being

without merit especially in light of Appellant’s failure to present a full and

complete record to support his point of error.




                                         24
         Failure to present full record

         It is Appellant’s burden to present a sufficient record on which this Court

may make a determination of whether error occurred. Montoya v. State, 872

S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Here, there are

references to a conference in chambers at which Appellant’s counsel agreed to the

reading back of certain testimony, but it is not clear exactly what testimony was

read back, not exactly what Appellant’s counsel later objected to.               Because

Appellant has not presented a sufficient record on which it can be determined

whether error occurred, his point of error should be overruled. Even if its merits

are considered, based on what does appear in the record, Appellant has not shown

error.

         On the merits

         Article 36.28 of the Texas Code of Criminal Procedure provides, in relevant

part, that “[i]n the trial of a criminal case in a court of record, if the jury disagree as

to the statement of any witness, they may, upon applying to the court, have read to

them from the court reporter’s notes that part of such witness testimony or the

particular point in dispute, and no other….” Where the jury requests testimony be

read back during deliberations, the trial court must determine whether the request

is in compliance with article 36.28. Robison, 888 S.W.2d at 480. However, a




                                            25
simple request for testimony does not, by itself, reflect disagreement and is not a

proper request under article 38.26. Id.

      This case closely mirrors the facts in Robison in that in both cases a series of

requests were sent out by the jurors, each becoming more specific. This Court

should follow the Robison holding, which is particularly applicable and is quoted

in relevant part here:

      Here, there were three separate requests made by the jury in
      determining whether a dispute existed, each becoming increasingly
      narrow in scope. Additionally, the trial court clearly informed the jury
      that testimony would be read back only in the event of a dispute after
      each request for information. By considering the last note requesting
      the testimony in conjunction with prior notes from the jury and the
      corresponding instructions from the trial court, it was not
      unreasonable to infer a disagreement among the jury regarding [the]
      testimony. The trial court was properly cautious in observing the
      competing concerns of article 36.28 of the Texas Code of Criminal
      Procedure. We therefore hold the trial court, in this instance, did not
      abuse his discretion in permitting certain testimony be given to the
      jurors.

      Id. at 481.

      The facts of this case are quite similar to those in Robison, and therefore the

holding of this Court should be the same. Appellant’s fifth point of error should be

overruled.




                                          26
                                     PRAYER

      Wherefore, premises considered, Appellee prays that Appellant’s points of

error be overruled and his conviction be affirmed in all things.

                                           Respectfully submitted,


                                               John F. Healey, Jr.




                                               /s/ Jason Bennyhoff
                                                   Jason Bennyhoff
                                               Assistant District Attorney
                                               Fort Bend County, Texas
                                               S.B.O.T. No. 24050277
                                               301 Jackson Street Room 101
                                               Richmond, Texas 77469
                                               281-341-4460 (office)
                                               281-341-8638 (fax)




                                          27
                         CERTIFICATE OF SERVICE

      I, Jason Bennyhoff, do hereby certify that a true and correct copy of the
foregoing Brief was sent to counsel for the Appellant on May 8, 205, via email by
way of electronic service through EFile Texas at the email address below.

LaShawn Williams
lwilliams@lawilliamslegal.com
Counsel for Appellant


                                             /s/ Jason Bennyhoff
                                             Jason Bennyhoff


Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)(3)
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Jason
Bennyhoff, hereby certify that the foregoing electronically created document has
been reviewed by the word count function of the creating computer program, and
has been found to be in compliance with the requisite word count requirement in
that its word count in its entirety is 7,082 words.


                                             /s/Jason Bennyhoff

                                             Jason Bennyhoff




                                        28
