Opinion issued December 31, 2018




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00571-CR
                          ———————————
             TALAWRENCE DONYEA TENNELL, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 85th District Court
                           Brazos County, Texas
                  Trial Court Case No. 15-01993-CRF-85†



     Under its docket-equalization authority, the Supreme Court of Texas
     transferred this appeal from the Court of Appeals for the Tenth District to
     this Court. See Misc. Docket No. 17–9066, Transfer of Cases from Courts of
     Appeals (Tex. June 20, 2017); see also TEX. GOV’T CODE § 73.001
     (authorizing transfer of cases). We are unaware of any conflict between
     precedent of that court and that of this court on any relevant issue. See TEX.
     R. APP. P. 41.3.
†
     We deny appellant’s motion for rehearing. We withdraw our memorandum
     opinion dated August 30, 2018 and issue this substitute opinion.
                           MEMORANDUM OPINION

      A jury found appellant Talawrence Donyea Tennell guilty of capital murder

in the death of a seven-month-old baby. See TEX. PENAL CODE § 19.03(a)(8). The

court sentenced him to life in prison, without the possibility of parole. See id.

§§ 19.03(b), 12.31(a)(2). Tennell filed a motion for new trial alleging that the State

failed to disclose exculpatory evidence before trial and that the same evidence

entitled him to a new trial. After a hearing, the trial court denied the motion.

      On appeal, Tennell reurges the grounds for his motion for new trial. He also

contends that the trial court erred by admitting evidence over his hearsay objection

and by denying his request for an instruction on the lesser-included offense of

manslaughter.

      We conclude that Tennell waived his hearsay objection and that he has

failed to show that he was entitled to a jury instruction on manslaughter. He also

has failed to prove that the State withheld exculpatory evidence or that his failure

to discover the evidence at issue was not caused by his own lack of diligence. To

the extent he has attempted to raise constitutional arguments on appeal, they have

been waived. Accordingly, we affirm the trial court’s judgment.

                                    Background

      Appellant Talawrence Donyea Tennell lived with his girlfriend Crystal

Harris. Two children lived with them, Harris’s seven-month-old daughter, Hailey,

and her five-year-old daughter, Riley.
                                           2
      One afternoon, Harris left Hailey at home under Tennell’s care. When Harris

returned home approximately two hours later, Tennell was holding Hailey. The

baby was unresponsive, and her forehead was bruised. Harris attempted CPR and

called 911. An ambulance responded, and Hailey was transported to a hospital

where she was pronounced dead. Her cause of death was determined to be blunt-

force injuries.

      That evening, detectives of the Bryan Police Department interviewed

Tennell. The report of the interview stated that Tennell told them that the previous

evening, a plastic mouthwash bottle containing liquid PCP (phencyclidine) had

burst in his pants pocket while he was riding in a friend’s car, and he threw the

bottle out of the car window. He claimed that the drug contacted his skin, and he

started to “trip” from it. He awoke the next morning around 9:00 a.m. to go to a

junkyard with his brother-in-law to look for a part, and then he returned home and

fell asleep. Around 1:00 p.m., Harris woke him to tell him that she was leaving to

get her older daughter from school and take her to an eye doctor.

      Tennell told the detectives that Hailey was sleeping when Harris left and that

subsequently he fell asleep again. According to his statement, some time later he

heard Hailey crying, and he put her pacifier back in her mouth and fell back asleep.

When he awoke, Hailey was on the floor and was not making any noise. He picked

her up and held her until Harris returned. He stated he made no attempt to notify

anybody what had happened.
                                         3
      Tennell was arrested and charged with Hailey’s murder. He was taken to the

hospital, had blood drawn for a drug test, and later was booked at the Brazos

County Jail. He was indicted on counts of capital murder, felony murder, and

injury to a child. He pleaded not guilty, and the case proceeded to trial. Tennell’s

defensive theory was that he was extremely intoxicated when he killed Hailey due

to transdermal absorption of a large dose of PCP that had leaked through his jeans.

      At trial Harris testified that the day before Hailey’s death, she and Tennell

had had an argument over his phone contact with an ex-girlfriend. She confronted

him and told him to leave. Tennell collected his clothes, and she took him to a

motel. Shortly thereafter, they spoke on the phone and decided that Tennell could

return to the house and they would discuss it. Tennell returned with his clothes

around 10:00 p.m., and they talked. Tennell decided that he wanted to continue

their relationship. Harris testified that Tennell’s behavior was normal when he

returned home that evening before Hailey’s death, and after he took a shower, they

went to bed, with Hailey sleeping with them on their bed.

      Harris testified that the next morning, she took her older daughter to school,

picked up her niece, and returned home. Tennell and Hailey were still in bed, and

nothing had raised Harris’s suspicion at that time. Tennell soon got up, took a

shower, and got dressed. He left to go to a junkyard with Harris’s brother-in-law.

While he was gone, Harris fed Hailey and they both fell asleep. When Tennell


                                         4
returned, he woke Harris and reminded her that she needed to get her older

daughter at school and take her to her eye doctor appointment.

      When Harris left that afternoon to take her older daughter to the eye doctor,

Hailey was in the adults’ bedroom. Upon her return approximately two hours later,

Tennell was in the bedroom, holding Hailey. There was blood on his shirt, and

Hailey was unresponsive. Harris repeatedly asked Tennell what had happened, but

he did not respond. She stated that he “didn’t look normal.”

      During cross-examination, defense counsel asked Harris whether she had

ever seen or smelled PCP in her apartment while Tennell was there, whether she

smelled PCP on his pants the night before Hailey’s death, and whether she was

aware that he sold drugs. Harris stated that she was familiar with the smell of PCP

from a prior relationship, but she had never smelled or seen PCP in her apartment

while Tennell was there, including the night before and the day of Hailey’s death.

      Officer R. Snell was one of the first officers to arrive at Harris’s apartment.

He testified that he spoke with Tennell, who claimed that Hailey had fallen off the

bed while sleeping. Tennell had difficulty answering questions, and Snell believed

he was under the influence of “some type of substance.” Snell smelled PCP at the

residence, and he recovered a travel-sized mouthwash bottle from the bottom of the

steps outside of the apartment. The bottle contained tobacco leaves, which Snell

testified was consistent with a common method of smoking PCP. The bottle tested

positive for PCP.
                                         5
      The emergency physician who treated Hailey and the assistant medical

examiner who performed the autopsy each testified. Hailey had sustained various

fractures to her body and numerous fractures to her skull. Both witnesses believed

that Hailey’s injuries were not consistent with an accidental fall, but instead had

been inflicted intentionally by a person.

      A crime-scene investigator testified that she collected a pair of folded blue

jeans from behind the front door of the apartment. The jeans were admitted into

evidence. A swatch cut from the jeans tested positive for PCP.

      A trained paramedic working in the medical jail division of the Brazos

County Sheriff’s office testified that her job was to assess the mental and physical

status of inmates upon their arrival at the jail. Medical intake was done for every

booked inmate and included the completion of an “Initial Inmate Medical

Interview” form. The form had spaces for the inmate’s identifying information, and

it included questions about medical history, allergies, prescribed medicine, and

history of drug and alcohol use and treatment. The paramedic testified that the

purpose of the interview was to ascertain the inmate’s medical issues and to better

treat the inmate in case “something happened in the jail.”

      The paramedic completed Tennell’s medical interview form when he arrived

at the Brazos County Jail on the evening of Hailey’s death. Tennell admitted that

he used PCP. The paramedic testified that when inmates admitted to drug use, she

asked follow-up questions to determine whether an inmate would “detox,” and
                                            6
whether there might be behavioral issues due to the drug use. When the paramedic

asked follow-up questions about Tennell’s drug use, he said that he had been

smoking PCP since the beginning of the year, he smoked “a lot” each day, and he

had last smoked PCP that same day. He further stated: “[I] probably have a lot of

PCP in my system.” The paramedic recorded Tennell’s responses on the medical

interview form, which was admitted into evidence over a hearsay objection. Blood

samples drawn from Tennell hours after Hailey’s death were positive for the

presence of PCP.

      The defense presented testimony from Dr. Mansoor Khan, an expert in

pharmaceutical science with a specialization in drug delivery systems. He testified

that based on his review of literature discussing the molecular structure of PCP and

his knowledge of transdermal absorption, there is a “very high possibility” that the

substance could permeate through the skin. He further explained that side effects of

high dosages of PCP could include disassociation, agitation, violence, coma,

memory loss, and death.

      The lead investigator in the case, Detective S. Davis of the Bryan Police

Department, was not called to testify by either side. Thus the jury never heard

about Tennell’s statement to Davis that he had spilled PCP on his pants the night

before Hailey’s death. During trial, Tennell put on the jeans that had been offered

into evidence to demonstrate to the jury that they were his.


                                          7
      At the close of evidence, the trial court presented the parties a proposed jury

charge that included instructions on capital murder and the lesser-included offense

of felony murder based on the underlying offense of reckless injury to a child.

Tennell asked the court to include instructions on the lesser-included offenses of

manslaughter, criminally negligent homicide, and felony murder based on the

underlying offense of possession of a controlled substance. The court denied the

requests. The trial court also denied Tennell’s request for an instruction on

involuntary intoxication.

      During closing arguments, the State argued that Tennell “wanted [Hailey]

dead” and that he had intentionally killed her. Tennell’s counsel argued that the

State had not proved its case beyond a reasonable doubt. Tennell’s counsel also

argued that PCP had been absorbed into his skin through the jeans, which were in

evidence. The State objected to the argument, arguing that there had been no trial

evidence of transdermal absorption through the jeans or that Tennell had worn

them on the day of the murder. The court overruled the objection.

      Tennell’s counsel argued that because Tennell was a “PCP addict,” he knew

how PCP affected him. But “something different happened the day Hailey died”;

Tennell took a larger dose of PCP than he ever had before, and that dose “could

have” come from the PCP on the jeans. Defense counsel showed the jeans to the

jury and argued that when they were collected, the jeans “had a huge wet stain”

from the PCP. Counsel argued that the smell of PCP was still present on the jeans
                                         8
at the time of trial and that she found it “impossible to believe” that Harris had no

idea that Tennell used and dealt drugs. Counsel asked, “How is it that other

witnesses who are walking into that house for the very first time immediately smell

PCP, . . . and she couldn’t?” Counsel argued that rather than Tennell being “totally

normal” when Harris left the apartment, it made more sense that “he was already

stoned out of his gourd.”

      The jury found Tennell guilty of capital murder and that he had used a

deadly weapon to commit the offense. He was automatically sentenced to life in

prison. Tennell filed a motion for new trial, alleging that the State withheld

evidence that Harris saw him wearing the PCP-stained jeans before she left Hailey

at the apartment under his care on the day of her death. After a hearing, the trial

court denied the motion for new trial. Tennell appeals.

                                     Analysis

      Tennell raises two issues relating to events during the trial—the admission

of hearsay evidence and the denial of a jury instruction about a lesser-included

offense. We address these issues first. We then consider issues relating to Tennell’s

motion for new trial and the allegation that the prosecution withheld evidence.

Finally we address the waiver of two issues attempting to challenge the conviction

with constitutional arguments made for the first time on appeal.




                                         9
I.    Medical intake interview form as hearsay

      Tennell argues that the trial court erred by admitting, over his objections, a

page from his medical interview form completed upon his admittance to the Brazos

County Jail. Trial courts have broad discretion to determine the admissibility of

evidence, and we will find error only upon a showing of a clear abuse of discretion.

Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App. 1990); Roberts v.

State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). As

long as the trial court’s ruling was within the “zone of reasonable disagreement,”

there is no abuse of discretion. Montgomery, 810 S.W.2d at 391.

      The State offered into evidence a page from the medical intake form

completed by a trained paramedic working for the Brazos County Sheriff’s Office.

Tennell objected to the exhibit as hearsay. The State argued that the document fell

under the hearsay exception for statements made for the purpose of medical

diagnosis. See TEX. R. EVID. 803(4). Tennell argued that the document was

prepared by law enforcement and therefore did not fall under the hearsay

exception. The State responded that the questionnaire was a “recording” of

Tennell’s statement, “just like a transcript would be.” The trial court overruled the

hearsay objection.

      On appeal, the State argues that the questionnaire was admissible as a record

of regularly conducted business activity. See TEX. R. EVID. 803(6). It further


                                         10
contends, as it did at trial, that the exhibit was properly admitted as a statement

made for medical treatment or diagnosis under Rule 803(4).

      Tennell argues that the paramedic did not testify as a records custodian for

the Brazos County Jail and the State failed to lay the proper predicate for the

business-records hearsay exception. However, the rule provides that the predicate

may be established by the custodian of records for the business or “another

qualified witness.” TEX. R. EVID. 803(6)(D); see also Melendez v. State, 194

S.W.3d 641, 644 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Tennell fails

to provide any argument that the paramedic, despite not being described as a

records custodian, was not a qualified witness to sponsor the evidence. The

paramedic specifically testified that she completed the medical interview form

based on knowledge that she acquired at the time it was imparted to her by

Tennell. See TEX. R. EVID. 803(6)(A). She further testified that it was a record that

she created “regularly” as part of “the regular course of business at the jail.” See

TEX. R. EVID. 803(6)(B), (C). We conclude that the trial court would not have

abused its discretion to admit the document under the business-record exception to

the hearsay rule. See TEX. R. EVID. 803(6); see, e.g., Moyer v. State, 948 S.W.2d

525, 528 (Tex. App.—Fort Worth 1997, pet. ref’d).

      When a document is admissible as a business record under Rule 803(6),

statements contained within it nevertheless may be inadmissible hearsay. Garcia v.

State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). If the record contains
                                         11
information from a person outside of the business who had no duty to report or to

report accurately, such information is not admissible unless there is an independent

qualification for its admission under a hearsay exception. Id. at 926–27. That a

statement was made for medical diagnosis or treatment can qualify as an

independent basis for a statement’s admissibility under an exception to the hearsay

rules. Id.; see TEX. R. EVID. 803(4). A statement made for and reasonably pertinent

to a medical diagnosis or treatment, and that “describes medical history; past or

present symptoms or sensations; their inception; or their general cause” may be

admissible as an exception to the rule against hearsay. TEX. R. EVID. 803(4).

      Tennell argues that he was not at the jail seeking treatment for a medical

condition, and his statements therefore do not fall under the hearsay exception for

medical diagnosis or treatment. “Rule 803(4) is premised on the declarant’s desire

to receive an appropriate medical diagnosis or treatment, and the assumption that

the declarant appreciates that the effectiveness of the diagnosis or treatment may

depend on the accuracy of the information provided.” Munoz v. State, 288 S.W.3d

55, 58 (Tex. App.—Houston [1st Dist.] 2009, no pet.). A two-part test is used to

determine whether the declarant believed that his statements would be utilized for

the purpose of his medical diagnosis or treatment and that the truthfulness of his

statements can therefore be relied upon. Id.; see Taylor v. State, 268 S.W.3d 571,

588–89, 591 (Tex. Crim. App. 2008). “First, the statement must be made for the

purpose of diagnosis or treatment, and the declarant must know that it is made for
                                         12
the purpose of diagnosis and treatment.” Munoz, 288 S.W.3d at 58 (citing Taylor,

268 S.W.3d at 588–89). Second, the statement must be relevant to a medical

diagnosis or treatment. Id. (citing Taylor, 268 S.W.3d at 591). If the record

circumstantially supports an inference that the declarant understood the purpose of

his statement to be for medical treatment or diagnosis, and the need to be truthful

in his statement, it may be excepted from the rule against hearsay under Rule

803(4). See Taylor, 268 S.W.3d at 585; see also Munoz, 288 S.W.3d at 58.

      Tennell relies upon Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App.

2004), to support his contention that his statements were not made for the purpose

of medical treatment or diagnosis. In Garcia, the Court of Criminal Appeals held

that Rule 803(4) was inapplicable to statements made by the complainant to an

employee of a women’s shelter because there was no evidence that the

complainant had visited the shelter for the purpose of receiving a medical

diagnosis or treatment, or that she actually received medical diagnosis or treatment

from the shelter’s employees. Id. at 927.

      The facts of this case are distinguishable from the facts in Garcia. The

trained paramedic testified that she worked in the medical division of the jail. She

was responsible for assessing the mental and physical status of incoming inmates

to determine whether they had any particular medical needs, and to provide

informed treatment for inmates during their time at the jail. Unlike the

circumstances of the complainant’s reports to a shelter employee as described in
                                            13
Garcia, the paramedic in this case testified that questions about drug use were used

to determine whether “the inmate may detox.” As part of the intake process,

Tennell’s blood pressure and pulse were taken, and he was asked about his

allergies, medical history, current health problems, current physician, and

prescribed medications. Although Tennell did not go to the jail for the purpose of

medical treatment or diagnosis, the trial court reasonably could have inferred that

the specific purpose of the paramedic’s questions was to determine whether

Tennell was in need of medical treatment for a physical or mental condition, and

that the circumstantial evidence demonstrated that he answered the questions in

cooperation with and in furtherance of that purpose. Accordingly, the trial court

did not abuse its discretion by admitting the form or the statements contained in it.

See Munoz, 288 S.W.3d at 58. We therefore overrule Tennell’s complaint about the

admission of hearsay evidence.

II.   Lesser-included offense instructions

      Tennell was charged with capital murder for intentionally or knowingly

causing the death of an individual under ten years of age. See TEX. PENAL CODE

§§ 19.02(b)(1), 19.03(a)(8). The trial court’s proposed jury charge included an

instruction on capital murder and an instruction on the lesser-included offense of

felony murder based on the underlying offense of reckless injury to a child. See id.

§§ 19.02(b)(3), 22.04(a). At the charge conference, Tennell requested additional

instructions on the lesser offenses of manslaughter, criminally negligent homicide,
                                         14
and felony murder based on the underlying offense of possession of a controlled

substance. The court denied the requests. Despite the option of convicting on the

lesser-included charge of felony murder, the jury found Tennell guilty of capital

murder. On appeal, he challenges only the denial of his request for a manslaughter

instruction.

      Because the manslaughter instruction was requested at trial, if the denial of

the instruction was an error we will reverse if “some harm” resulted. Nangurai v.

State, 507 S.W.3d 229, 234 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). A

two-part test is applied to determine whether a defendant is entitled to an

instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d 377,

382–83 (Tex. Crim. App. 2012). The first step is a question of law, which

“compares the elements alleged in the indictment with the elements of the lesser

offense” to determine “if the proof necessary to establish the charged offense also

includes the lesser offense.” Id. at 382. The second step of the test requires

consideration of whether there is some evidence that would allow a rational jury to

acquit the defendant of the greater offense while convicting him of the lesser-

included offense. Id. at 383; Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App.

2011).

      Tennell’s brief acknowledges that a “jury’s failure to find an intervening

lesser-included offense (one that is between the requested lesser offense and the

offense charged) may, in appropriate circumstances, render a failure to submit the
                                        15
requested lesser offense harmless.” Masterson v. State, 155 S.W.3d 167, 171 (Tex.

Crim. App. 2005). He further concedes that the mental state required for

manslaughter—recklessness—was the same mental state required for the felony-

murder charge rejected by the jury in favor of its guilty verdict on the capital-

murder charge. Still, Tennell suggests that “differences remain” between the

proposed lesser-included offense of felony murder based on reckless injury to a

child and manslaughter because the jury would have had to find that he committed

an act clearly dangerous to human life to convict him of felony murder, see TEX.

PENAL CODE § 19.02(b)(3), but that is not an element of manslaughter, see id.

§ 19.04.

      Tennell’s argument does not explain why he was entitled to a manslaughter

instruction in addition to the lesser-included felony-murder instruction that was

given. He attempts to analogize his case to Roy v. State, 509 S.W.3d 315 (Tex.

Crim. App. 2017), a murder case in which the Court of Criminal Appeals held that

a lesser-included manslaughter instruction was required. Roy is distinguishable

because some evidence in that case suggested that the appellant deliberately caused

a fatal car crash, and he was charged with a different theory of murder, TEX. PENAL

CODE § 19.02(b)(2), which required proof that he intended to cause serious bodily

injury. Roy, 509 S.W.3d at 317. The Court held that other evidence would have

allowed a jury to find that the appellant did not intend to cause harm yet did

disregard the risk of causing death by driving while intoxicated, thus requiring the
                                        16
manslaughter instruction. Id. at 319. Unlike this case, Roy did not feature the

circumstance of a capital-murder charge premised on intentional conduct paired

with an instruction on a lesser-included felony-murder offense that was premised

on reckless conduct.

      Tennell does not suggest what evidence would have allowed a rational jury

to convict him of only manslaughter while acquitting him of the felony-murder

charge premised on reckless injury to a child. Cf. Sweed, 351 S.W.3d at 68. “[I]t is

not enough that the jury may disbelieve crucial evidence pertaining to the greater

offense, but rather there must be some evidence directly germane to the

lesser-included offense for the finder of fact to consider before an instruction on a

lesser-included offense is warranted.” Bullock v. State, 509 S.W.3d 921, 925 (Tex.

Crim. App. 2016). While he suggests that a jury could have chosen to convict him

of manslaughter because that charge would not have required the jury to find that

he committed an act clearly dangerous to human life, he fails to suggest what

evidence would have supported a rational jury in drawing that distinction. See

Hudson v. State, 449 S.W.3d 495, 498–99 (Tex. Crim. App. 2014) (holding

defendant was not entitled to a lesser-included instruction on manslaughter when

the proof upon which she relied was also sufficient to prove another, greater lesser-

included offense of capital murder); Flores v. State, 245 S.W.3d 432, 439 (Tex.

Crim. App. 2008) (“A defendant does not satisfy the second prong” of the standard

for determining if a lesser-included instruction is required “if there is evidence that
                                          17
he committed an offense that is a lesser-included of the charged offense but greater

than the requested lesser-included offense.”). Nor does he explain how he could

have been harmed by the failure to give the manslaughter instruction when the jury

convicted him of capital murder despite having the option of convicting him of

felony murder based on reckless injury to a child. See Masterson, 155 S.W.3d at

172. Accordingly, we overrule Tennell’s challenge to the trial court’s denial of his

request for lesser-included-offense jury instructions.

III.   Denial of motion for new trial

       Tennell’s remaining issues relate to the denial of his motion for new trial.

On the day after Tennell was sentenced, his trial counsel was informed by the

prosecutors that Harris met with them after the sentencing. She stated that the jeans

that Tennell was wearing on the day of Hailey’s death were the jeans that had been

admitted into evidence at trial and were stained with PCP. Tennell filed a motion

for new trial asserting that this allegedly exculpatory information was withheld

from his counsel before trial. The motion also argued that this information justified

a new trial because it constituted newly discovered evidence, and that deadlines

applicable to a motion for new trial were unconstitutional as applied to him.

       Before trial, Harris had stated that Tennell was wearing jeans the day Hailey

died. The prosecution provided that information to defense counsel in discovery

responses almost two years before trial. The prosecution also produced documents

indicating that a pair of jeans had been collected from the apartment and submitted
                                          18
for toxicology testing. Shortly before trial, those jeans were tested for the presence

of PCP, and the positive results were provided to defense counsel.

      In the hearing on his motion for new trial, Tennell offered into evidence

notes from a meeting Harris had with two prosecutors and an investigator

approximately two weeks before trial. Notes from each of the three members of the

prosecution team indicated that Harris had stated Tennell wore “blue jeans” or

“dark blue” jeans. These notes were not provided to the defense until after trial.

The crux of the Brady claim was that the prosecution should have informed

defense counsel that Harris described the jeans as “blue jeans” or “dark blue”

jeans, rather than just “jeans,” because the prosecution knew or should have

suspected that she would identify the PCP-stained jeans as the jeans that Tennell

was wearing on the day of Hailey’s death.

      At the hearing, the State offered into evidence a written report, titled

“Supplement: 0033,” that had been prepared by Detective Davis and that included

a brief summary of an interview with Harris on the day after Hailey’s death.

According to the summary, Harris told the detectives that when she left the

apartment to take her older daughter Riley to the eye appointment, Tennell was

sitting on the living-room sofa, wearing “a T-shirt, jeans and slides.” Defense

counsel agreed that Supplement 33 was provided in the State’s first batch of

discovery responses, almost two years before trial. Defense counsel also agreed


                                         19
that Supplement 33 would have been one of the first things reviewed in preparation

for the case.

      The State also offered into evidence two recordings of Detective Davis

interviewing Tennell. The first recording was an interview conducted on the day of

Hailey’s death, in which Tennell claimed that a bottle of PCP had burst in his

pocket the night before, spilling PCP onto his skin. During the second interview,

conducted approximately one week later, Detective Davis confronted Tennell with

inconsistencies between his and Harris’s accounts of certain details about the day

of Hailey’s death. Detective Davis explained that Harris had said she remembered

that Tennell was sitting on the couch when she left, and he was wearing a white

t-shirt, jeans, and “red slides.” Defense counsel conceded that recordings of both

interviews of Tennell were included in the State’s first batch of discovery

responses. Counsel further stated that both audio files had been reviewed “multiple

times.” Nevertheless, two different lawyers working on Tennell’s defense each

testified that they had missed both references to “jeans” in the State’s discovery

responses.

      The lead prosecutor testified that he had not suspected that the jeans in

evidence were the same jeans that Harris had mentioned in her earliest statement to

police. He added that he had never asked Harris if the jeans in evidence were the

same jeans that Tennell was wearing on the day Hailey died and that she had never

told the prosecution that the blue jeans in evidence were the blue jeans that Tennell
                                         20
was wearing that day. The prosecution had not shown the jeans or photographs of

the jeans to Harris before trial, and only after sentencing did they learn from her

that she had seen Tennell in those particular jeans on the day Hailey died. The lead

prosecutor explained:

      Actually that was the weird thing about it. If you’re talking about
      what we were thinking at the time, we didn’t know exactly what was
      going on. I assumed that the jeans had been tested -- I assumed that at
      the time. When we found out they weren’t tested, we were thinking,
      “well, wait a minute. Are they trying to say that Crystal was going to
      be the person that killed Hailey?” We didn’t know what the defense
      was going to be at that time.

      We knew that the defendant had admitted that he had -- what he had
      said about the PCP breaking in his pants was not true because two
      weeks later he talked to the police and said that none of that stuff was
      true, that he had smoked that day. We also knew that the jail incident -
      - the jail records show that when they asked him what drugs he had in
      his system, he said that he had smoked PCP. He didn’t say anything
      about any spillage.

      So we did not know what was going to happen with these jeans.
      Wasn’t as important to us. We knew that the defendant had been
      smoking and he had conceded that he had been smoking that day, and
      -- it wasn’t a big deal. She had said there was blue jeans to the police,
      she told us it was blue jeans. The issue for us was that he was smoking
      PCP.

      ....

      I guess what I’m trying to get you into my mind of -- this was -- when
      he -- there wasn’t a question of involuntary intoxication when he
      admitted to smoking that day. So the jeans -- the argument about the
      jeans or whether or not there’s something that spilled on the jeans
      from him voluntarily smoking was not in issue.



                                         21
      So he had -- the only issue with the jeans and with it being absorbed
      through the jeans is when it -- possibly the night before where he said
      that there was something that burst in his pants.
      ....

      The evidence that we had was that the defendant stated that he had
      spilled PCP on his jeans the night before, he threw those jeans down
      behind the couch. He doesn’t say anything about putting those jeans
      back on. So we’re not thinking that these are the same jeans at that
      time.

      The lead prosecutor also testified that he never made the connection—and

that it never crossed his mind—that the jeans in evidence were the jeans that

Tennell was wearing on the day of Hailey’s death until Harris told him so after the

sentencing.

      One of the defense lawyers testified that she had asked Tennell if he had

been wearing the jeans, but he told her that he “could not remember anything about

the immediate surroundings of the baby’s death or about what he was doing, what

he was wearing.” The defense lawyer was not asked if she had questioned Tennell

about what he was wearing earlier in the day.

      A psychological evaluation of Tennell performed a month before trial was

also admitted into evidence at the new-trial hearing. The State had sought the

examination in anticipation of a possible insanity defense, and the evaluation

report was provided to defense counsel soon after its release. The report recounted

Tennell’s story that the PCP bottle had leaked in his pants pocket on the way to

Harris’s house and that when he returned to the house, he took off the pants and

                                        22
left them at the front door. Tennell also reported to the psychologist some of the

details he had told the police, such as going to the junkyard with Harris’s brother-

in-law, but he also reported that with respect to Hailey, “Everything is a blur.” The

lead prosecutor testified, based on Tennell’s version of events as reported in the

psychologist’s report, that he did not think that Tennell was unable to tell his

lawyers what he was wearing.

      The defense lawyer also testified that she never attempted to speak to Harris

before trial, nor did she send an investigator to speak with her. The lawyer testified

that she was worried about damaging Tennell’s case if someone from the defense

team contacted Harris before trial and said something to upset her.

      Noting that the defense had asked Harris at trial if she had smelled PCP on

Tennell’s “pants” the night before Hailey died, the State asked defense counsel

why she had not also asked Harris about her statement to Detective Davis that

Tennell had been wearing jeans. Counsel stated that at that time she had not

remembered the word “jeans” from the report. In an affidavit attached to Tennell’s

motion for new trial, defense counsel stated that she chose not to ask Harris

whether she had seen Tennell wearing the PCP-stained jeans because she did not

know how Harris would answer the question. Counsel believed that if Harris

denied that she had seen Tennell in the PCP-stained jeans, it would destroy the

defensive theory. Both defense lawyers conceded that Detective Davis would have


                                         23
been available as a defense witness, but they made a strategic decision not to call

him to the stand.

      In support of the argument that the State knew the PCP-stained jeans were

the same ones Harris had seen him wearing on the day of the murder, Tennell

offered into evidence a recording and transcript of a call between Harris and a

defense investigator. During the call, which took place several weeks after trial,

Harris told the investigator that she had explained to the prosecution before trial

that Tennell’s story about PCP spilling in his jeans pocket the night before Hailey’s

death could not be true because he was wearing shorts that night, and he did not

put on “those jeans” until the next morning.

      Harris testified at the hearing on the motion for new trial. She first testified

that Tennell was wearing what she later learned were the PCP-stained jeans when

she left him with Hailey on the day of her death, but at no point in the two years

before trial did she ever know that there was a claim that PCP had been spilled on

those jeans. Harris clarified that she had told prosecutors and detectives that

Tennell was wearing blue jeans when she last left him with Hailey, but the

prosecution had never shown her the PCP-stained jeans or photographs of those

jeans that had been collected from the apartment. The first time she saw those jeans

again after Hailey’s death was when defense counsel held them up during closing

argument. Harris then realized that they were the jeans she had seen Tennell

wearing the day of Hailey’s death, and she informed the prosecutors the following
                                         24
day. She thus explained in her testimony that when she had told the prosecutors

and police all along that Tennell was wearing jeans, blue jeans, or dark blue jeans

when she left Hailey with him on the day of her death, she did not know that the

jeans that she had been mentioning were the PCP-stained jeans that she recognized

in closing argument.

      The trial court denied the motion for new trial. We review a trial court’s

ruling on a motion for new trial under an abuse-of-discretion standard. Webb v.

State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the

light most favorable to the trial court’s ruling, and we must uphold the trial court’s

ruling if it was within the zone of reasonable disagreement. Id. “[A] trial court

abuses its discretion in denying a motion for new trial only when no reasonable

view of the record could support the trial court’s ruling.” Id. The credibility of the

witnesses in a new-trial hearing is primarily a determination for the trial court.

Pina v. State, 127 S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

“In considering a motion for new trial, the trial judge possesses broad discretion in

assessing the credibility of witnesses and in weighing the evidence to determine

whether a different result would occur upon retrial.” Messer v. State, 757 S.W.2d

820, 827 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (op. on reh’g).

      A.     Brady claim

      Tennell contends that the trial court erred by denying his motion for new

trial because the prosecution withheld exculpatory evidence—that Harris had
                                         25
changed her description of the jeans from “jeans” to “blue jeans” or “dark blue”

jeans. He asserts that the prosecution withheld the information that when Harris

last left her apartment before Hailey’s death, she saw Tennell wearing jeans, and

that the jeans were the same ones collected from the apartment and that later tested

positive for PCP. He contends that this information would have supported his

theory of transdermal absorption of PCP, and therefore would have made the

lesser-included offense of felony murder based on reckless injury to a child a more

viable option for the jury.

      “A prosecutor has an affirmative duty to turn over material, favorable

evidence to the defense.” Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.

1999). The suppression of evidence favorable to a defendant violates his

due-process rights if the evidence is material either to guilt or punishment, without

regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83,

87, 83 S. Ct. 1194, 1196–97 (1963). To establish a Brady violation, a defendant

must show: (1) the State failed to disclose evidence; (2) the withheld evidence is

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

reasonable probability that had the evidence been disclosed, the outcome in the

trial court would have been different. Pena v. State, 353 S.W.3d 797, 809 (Tex.

Crim. App. 2011); Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).

“Favorable evidence is any evidence that, if disclosed and used effectively, may

make a difference between conviction and acquittal and includes both exculpatory
                                         26
and impeachment evidence.” Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim.

App. 2006). Exculpatory evidence is that which may justify, excuse, or clear the

defendant from fault, and impeachment evidence is that which disputes,

disparages, denies, or contradicts other evidence. Id.

      The prosecution’s obligation to reveal Brady material attaches when the

information comes into the prosecution’s possession. Id. at 407. Brady does not,

however, require the prosecution to disclose exculpatory or potentially exculpatory

evidence that it does not have in its possession and that is not known to exist. Id.

Nor is the prosecution required “to seek out exculpatory evidence independently on

appellant’s behalf, or furnish appellant with exculpatory or mitigating evidence

that is fully accessible to appellant from other sources.” Id.

      It is undisputed that the State provided discovery responses to Tennell’s

counsel almost two years before trial and that this discovery included Detective

Davis’s report indicating that Harris told him that Tennell was wearing “jeans”

when she last left him alone with Hailey. It also included a recording of Tennell’s

first interview with police in which he stated that he spilled PCP on his pants the

night before Hailey’s death. And it included a recording of a second interview of

Tennell in which Detective Davis told him that Harris claimed he was wearing

jeans when she left him with Hailey. It is also undisputed the defense was aware

before trial that jeans, ultimately admitted into evidence at trial, had been collected

from the apartment and that a swatch from the jeans tested positive for PCP.
                                          27
      Tennell disparages the discovery provided to his defense team as a

“discovery dump.” But he presents no argument or evidence that the State

obscured the information that Harris stated he was wearing jeans before she left the

apartment. Also, the State argues that Tennell’s lead trial lawyer admitted at the

new-trial hearing that the first discovery documents that she received totaled only

fifty-four pages and included the police reports mentioning that Tennell had said

he was wearing jeans and that the bottle with PCP had broken in his pocket.

      The record shows that the State disclosed to Tennell’s lawyers the very

information that he now complains was unlawfully withheld. As for Tennell’s

complaint that the State failed to disclose that Harris saw him wearing the jeans

that tested positive for PCP, he has failed to show that the State had that particular

information before trial. The evidence before the trial court was that Harris did not

know before trial that the jeans that she had described early in the investigation to

police as “jeans” and that she had described to the prosecution team as “blue jeans”

or “dark blue jeans” were jeans that Tennell claimed had been soaked with PCP.

And the lead prosecutor testified that he had not suspected that the jeans in

evidence were the same jeans that Harris had mentioned in her earliest statement to

police.

      Without a failure to disclose evidence, there is no Brady violation. Harm,

183 S.W.3d at 406. By providing counsel discovery materials that contained

references to Harris’s earliest statement that Tennell was wearing jeans and the
                                         28
results of the PCP testing on the jeans, the State fulfilled any obligation it had with

respect to that evidence. Cf. Gill v. State, No. 01-09-01012-CR, 2010 WL

4910210, at *4 (Tex. App.—Houston [1st Dist.] Dec. 2, 2010, no pet.) (mem. op.,

not designated for publication) (citing Harm, 183 S.W.3d at 407) (If the State

opens its files for examination by defense counsel, it generally fulfills its obligation

to disclose exculpatory evidence, unless the evidence is not contained in the file.).

      Because Tennell has failed to establish that the State withheld information in

its possession or that it knew to exist, he has failed to satisfy the first prong,

requiring him to show that a Brady violation occurred. Further, the State did not

have a duty to investigate or develop Tennell’s defense with respect to determining

whether the jeans that Harris originally described to the police and to the

prosecution team were the PCP-stained jeans and whether she would testify to that

fact at trial. Moreover, as discussed above, defense counsel strategically decided

not to interview Harris before trial about the jeans in evidence and strategically

decided not to ask her at trial if the jeans in evidence were the jeans that she saw

Tennell wearing on the day of Hailey’s death. And to the extent that Tennell has

questioned Harris’s and the lead prosecutor’s credibility on their new-trial

testimony about the jeans, it was the trial court’s role to assess their credibility in

ruling on the motion for new trial. We therefore conclude that the trial court did

not abuse its discretion by failing to grant a new trial based on the alleged Brady

violation.
                                          29
      B.     Newly discovered evidence

      Tennell separately contends that the trial court erred by denying his motion

for new trial based on his discovery of new material evidence. As with the Brady

claim, this issue is premised on the theory that he did not learn until after trial that

Harris saw him on the day of Hailey’s death wearing the PCP-stained jeans.

      “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. To obtain relief under this rule, the defendant must satisfy a four-prong

test: (1) the newly discovered evidence was unknown or unavailable to the

defendant at the time of trial; (2) the defendant’s failure to discover or obtain the

new evidence was not due to his lack of due diligence; (3) the new evidence is

admissible and not merely cumulative, corroborative, collateral, or impeaching;

and (4) the new evidence is probably true and will probably bring about a different

result in a new trial. State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App.

2017).

      Tennell’s counsel claimed they were unaware at the time of trial that Harris

saw Tennell wearing the PCP-stained jeans the day of Hailey’s death. But even to

the extent they were subjectively unaware of this information, to be entitled to a

new trial based on newly discovered evidence, Tennell had to show that the failure

to discover this evidence was not due to his own lack of diligence.


                                          30
      The prosecution provided Tennell’s counsel with discovery that included

two references to the fact that Harris saw Tennell wearing “jeans” the morning of

the murder. These references were contained in the report of the lead detective and

in an interview of Tennell himself. The information was provided to defense

counsel almost two years before trial.

      Even to the extent Tennell’s legal team failed to find or perceive the

significance of the information disclosed by the prosecution in discovery about

Harris’s statement, Tennell himself was aware of the facts that he was with Harris

on the night before Hailey’s death and on the following morning. He had personal

knowledge of the facts at issue, including the circumstance that Harris was a

witness who possibly could have confirmed the information. Nevertheless, his

legal team did not attempt to speak with Harris before trial. Tennell’s counsel

testified at the hearing on the motion for new trial that this was a strategic decision.

      The trial court reasonably could have determined that through reasonable

diligence, Tennell’s counsel could have obtained the information that Harris saw

him wearing the PCP-stained jeans on the day of Hailey’s death. Accordingly, the

trial court did not abuse its discretion by denying a new trial based on the claim of

newly discovered evidence.




                                          31
IV.   Constitutionality of new-trial motion deadlines

      Tennell argues that the deadline for filing a motion for new trial is

unconstitutional as applied to him because it thwarted his ability to defend his

constitutional rights.

      A motion for new trial is a prerequisite to presenting a point of error or issue

on appeal when it is necessary to adduce facts not in the record. TEX. R. APP.

P. 21.2. Such a motion must be filed within 30 days after the date the trial court

imposes or suspends sentence in open court. TEX. R. APP. P. 21.4(a). Tennell

argues that, under his circumstances, the deadline for filing a motion for new trial

did not allow for “adequate investigation and accompanying support” for

“extra-record matters.” He broadly argues that because he is indigent and has been

jailed since his sentencing, and because his trial and appellate counsel were court-

appointed, he is unable to make a substantial claim that he received ineffective

assistance of counsel.

      While Tennell’s brief outlines potential arguments that he received

ineffective assistance of counsel, he provides no argument about how the existing

procedures were inadequate to allow his counsel to raise those issues on the

schedule established by the rules of procedure, so as to be unconstitutional as

applied to him in this case. See London v. State, 526 S.W.3d 596, 599–600 (Tex.

App.—Houston [1st Dist.] 2017, pet. ref’d). The brief recites the Fifth, Sixth, and

Fourteenth Amendments of the U.S. Constitution and Sections 10 and 19 of the
                                         32
Texas Bill of Rights as constitutional provisions that are violated by a “systemic

failure” of rules that are not specifically identified, but the brief makes no legal

argument about how particular procedural rules violate particular constitutional

protections with a discussion of applicable case law under those several

constitutional provisions, and the brief makes only conclusory allegations of harm.

See TEX. R. APP. P. 38.1(i) (appellant’s brief must contain “a clear and concise

argument for the contentions made, with appropriate citations to authorities”).

Accordingly, we conclude that Tennell has waived his constitutional challenge to

the procedures governing motions for new trial by failing to support the challenge

with appropriate legal arguments.

V.    Constitutionality of Penal Code Chapter 19

      Finally, Tennell argues that the trial court erred by denying his motion to

declare Chapter 19 of the Penal Code unconstitutional and failing to set aside the

indictment on that basis. Chapter 19 codifies the substantive law applicable to

criminal homicide in Texas.

      On appeal Tennell argues that Chapter 19 violates his right to equal

protection under the federal and state constitutions. In the trial court Tennell made

an oral motion to the trial court, asking it to declare Penal Code Section 12.31 and

Code of Criminal Procedure Article 37.071, Section 1, unconstitutional, based on

the mandatory sentence of life without parole applicable to capital-murder


                                         33
convictions. However, the record does not reflect that Tennell ever argued that

Chapter 19 is unconstitutional.

      Because Tennell’s argument on appeal differs from his argument in the trial

court, he has not preserved this issue for review. See TEX. R. APP. P. 33.1(a);

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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




                                           34
