                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 02-07-360-CR


ANTHONY RYAN CEDILLO                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     In six points, Appellant Anthony Ryan Cedillo appeals his conviction for

possession of a controlled substance of four grams or more, but less than two

hundred grams, of methamphetamine. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      Cedillo was the front passenger in a car that was stopped by gang unit

officers for a traffic violation. Officers Guitterrez and Kimball had followed the

car because it came from a “known gang house,” and when the officers

activated their vehicle’s red and blue lights, they saw the driver and Cedillo

make rapid movements and lean forward inside the car. As Officer Guitterrez

approached the car, he heard a “thud” on the floorboard and tapped the

window for the driver to open the door. When the driver did not respond,

Officer Guitterrez opened the driver’s door and saw a chrome pistol on the

floorboard.

      Officer Kimball removed Cedillo from the car and discovered he had a

silver Foley knife clipped to his jacket pocket. During a safety sweep of the

front passenger area of the car, Officer Kimball found two bags containing what

was later determined to be 54.99 grams of methamphetamine “shoved”

between the front passenger seat and the center console, beside where

Cedillo’s left leg had been.

      Officer Kimball arrested Cedillo for possession of a controlled substance.

During a search incident to the arrest, Officer Kimball found in Cedillo’s rear

pocket a black leather pouch containing a digital scale of the type used for

weighing narcotics, empty Ziploc bags of the type commonly used for

                                        2
packaging narcotics, and a red straw of the type commonly used to move the

drug methamphetamine from one baggie to another.

      At trial, Cedillo moved to suppress all the evidence found in the car,

arguing that the officers illegally stopped the car. The trial court found that the

officers had probable cause to stop the car based on a traffic violation and

denied the motion to suppress.       The jury found Cedillo guilty as charged,

sentenced him to sixty years in prison, and assessed a $3,500 fine.           This

appeal followed.

                       III. Legal and Factual Sufficiency

      In Cedillo’s first and second points, he asserts that the evidence is legally

and factually insufficient to sustain his conviction for possession of a controlled

substance.

A. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).




                                        3
      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).      We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      The sufficiency of the evidence should be measured by the elements of

the offense as defined by the hypothetically correct jury charge for the case.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v.

State, 166 S.W.3d 466, 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such

                                       4
a charge would be one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953

S.W.2d at 240. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the charging instrument. See

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

                                        5
      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the factfinder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

B. Analysis

      Cedillo claims that the record does not establish that he had actual or

constructive possession of any controlled substance. Possession involves the

exercise of control, management, or care over the controlled substances. See

                                        6
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Standing

alone, Cedillo’s presence at the location of the drugs is insufficient to establish

this element. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).

However, when combined with other evidence, presence or proximity may be

sufficient to establish the requisite proof of that element.      Id.   This other

evidence, or “affirmative links,” are weighed not necessarily by the number of

them, but by the “logical force” when taken together. Id. at 161–62. The

links, which are not a litmus test, include (1) the defendant’s presence when

a search is conducted; (2) whether the contraband was in plain view; (3) the

defendant’s proximity to and the accessibility of the narcotic; (4) whether the

defendant was under the influence of narcotics when arrested; (5) whether the

defendant possessed other contraband or narcotics when arrested; (6) whether

the defendant made incriminating statements when arrested; (7) whether the

defendant attempted to flee; (8) whether the defendant made furtive gestures;

(9) whether there was an odor of contraband; (10) whether other contraband

or drug paraphernalia were present; (11) whether the defendant owned or had

the right to possess the place where the drugs were found; (12) whether the

place where the drugs were found was enclosed; (13) whether the defendant

was found with a large amount of cash; and (14) whether the conduct of the

defendant indicated a consciousness of guilt. Id. at 162 n.12.

                                        7
The State’s evidence consisted of the following:

•    Cedillo was the front passenger in a car stopped by officers
     for a traffic violation after it left a known gang house.

•    Cedillo and the driver began making rapid movements and
     leaning forward inside the car after officers pulled over the
     car and activated their vehicle’s red and blue lights.

•    When Officer Guitterrez approached the car, he heard a
     “thud” to the floorboard.

•    The officer tapped on the window for the driver to open the
     door, but the driver did not comply.

•    Cedillo and the driver continued moving around inside the
     car, so Officer Guitterrez opened the driver’s door.

•    The officer saw a small chrome pistol on the floor board
     when the driver began exiting the car.

•    Cedillo had a silver Foley knife clipped to his jacket pocket
     when Officer Kimball removed him from the car.

•    Officer Kimball found two bags containing what was later
     determined to be 54.99 grams of methamphetamine
     “shoved” between the front passenger’s seat where Cedillo
     was sitting and the center console next to where Cedillo’s
     left leg had been.

•    Officer Kimball found in Cedillo’s right rear pocket a black
     leather pouch containing a digital scale of the type used for
     weighing narcotics, empty Ziploc-style bags commonly used
     for packaging narcotics for street sales, and a red straw
     commonly used to move methamphetamine from one baggie
     to another.

•    Officer Kimball found a “misdemeanor amount” of marijuana
     in Cedillo’s left front pocket.

                               8
      In sum, the evidence indicated that Cedillo possessed the controlled

substances because Cedillo was closest to the methamphetamine, he had

immediate access to the narcotics, his leather pouch contained items used by

narcotics dealers, and other drugs were found on his person when he was

arrested. Considering the foregoing, we hold that any reasonable trier of fact

could have found the essential element of control, management, or care beyond

a reasonable doubt and that the evidence is therefore legally sufficient.

      Likewise, considering the foregoing, we cannot say that the factfinder’s

determination is clearly wrong and manifestly unjust or that any conflicting

evidence so clearly outweighs the evidence supporting the conviction so that

the factfinder’s determination is manifestly unjust. Therefore, the evidence is

factually sufficient, and we overrule Cedillo’s first two points.

               IV. Motion to Suppress the Vehicle’s Contents

      In Cedillo’s third point, he asserts that the trial court erred by overruling

his motion to suppress the contents of the vehicle. He argues that the stop of

the car was “illegal” because Cedillo was not involved in any suspicious activity

when stopped by the police.

A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

                                        9
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give almost total deference to a trial court’s rulings on questions

of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-of-

law-to-fact questions that do not turn on credibility and demeanor. Amador,

221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Analysis

      It is virtually axiomatic that Officers Kimball and Guitterrez had probable

cause to stop the vehicle in which Cedillo was riding if they witnessed the

vehicle commit a traffic violation. See State v. Gray, 158 S.W.3d 465, 469

(Tex. Crim. App. 2005); Goudeau v. State, 209 S.W.3d 713, 719 (Tex.

App.—Houston [14th Dist.] 2006, no pet.). Texas Transportation Code section

545.104(b) reads in part as follows: “An operator intending to turn a vehicle

right or left shall signal continuously for not less than the last 100 feet of

movement      of   the   vehicle   before    the   turn.”   Tex.   Transp.   Code

Ann. § 545.104(b) (Vernon 1999); Tucker v. State, 183 S.W.3d 501, 507–08

(Tex. App.—Fort Worth 2005, no pet.) (affirming trial court’s decision to deny

motion to suppress where officer testified that driver did not signal turn until he




                                        10
reached stop sign and saw officer, providing officer with probable cause to stop

the vehicle due to a violation of section 545.104).

      Here, the evidence revealed that the officers witnessed the driver commit

a violation of this statute.

      Q. Okay. And at some point did that vehicle commit a traffic
      violation?

      A [Officer Guiterrez]. Yes.

      Q. What was that violation?

      A. It failed to signal prior to a hundred feet as—as it approached
      the intersection.

            ....

      Q. So after they committed a traffic violation, what did you do
      next?

      A. Then me and Officer Kimball initiated a traffic stop on that
      vehicle[.]

            ....

      Q. And they didn’t turn their turn signal on; is that correct?

      A [Officer Kimball]. Correct. They failed to signal at least a
      hundred feet before making the left-hand turn.

We hold that the trial court did not abuse its discretion in denying the motion

to suppress, and we overrule Cedillo’s third point.




                                      11
                       V. Motion to Suppress Statement

      In Cedillo’s fourth point, he asserts that the trial court erred by overruling

his motion to suppress a statement taken by Deputy R.G. Amenderez in

violation of article 38.22 of the Texas Code of Criminal Procedure. Specifically,

Cedillo complains that he was not given the proper warnings under the article

and would not have given a statement if he had understood that he could have

terminated the interview. Hence, he asserts that the trial court abused its

discretion in admitting his statement.

A. Background

      Deputy Amenderez, a classification deputy assigned to the confinement

division of the Tarrant County Sheriff’s Office, testified that his primary

responsibility is gang intelligence, and that he interviews inmates regarding their

past and present gang involvement at book-in and on an update basis.

Photographing inmates’ tattoos is a routine part of the process. He testified

that this information is used for the safety of the inmate, who might be

otherwise placed with rival gang members, and for the safety of jail staff.

      During Cedillo’s initial classification interview during the book-in process,

he claimed affiliation with the 21st Street gang. A week before the deputy

testified at trial and after reviewing Cedillo’s initial classification interview,

Amenderez interviewed Cedillo because he was “unsure about the gang that he

                                         12
admitted being a member of, whether it was a local Fort Worth street gang or

a gang from another part of the area.”      During this interview, Cedillo told

Amenderez that he had been inactive in the 21st Street gang for eight years

and had not joined a prison gang. Amenderez testified that he then told Cedillo

that the only thing he had left to do was to photograph any tattoos Cedillo

might have. At that point, Cedillo stated that he was a member of the Puro

Tango Blast gang since 2004.       He had two tattoos related to this gang

affiliation.

       The remainder of Amenderez’s testimony included a discussion of his job

responsibilities, the reason for inmate interviews and photographs, a discussion

concerning the photographs of the tattoos, and that Puro Tango Blast is a

predator group, both in and out of state prisons and county jails, that commits

assaults, drug offenses, and aggravated robberies. Amenderez did not testify

concerning, nor did he question Cedillo about, his attorney or his pending

charges, the status of which were not known by Amenderez at the time of the

pretrial interview.

B. Analysis

       Cedillo complains that the statements he made to Amenderez were

obtained in violation of article 38.22 of the Texas Code of Criminal Procedure.

Among other things, that article requires that certain admonitions be given to

                                      13
an individual before statements that the individual makes can be used at trial.

However, the article is inapplicable to “a statement that does not stem from

custodial interrogation.” Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon

2005). “Interrogation refers to words, actions, or questioning by the police that

the police should know are reasonably likely to elicit an incriminating response

from the accused.” Pierce v. State, 234 S.W.3d 265, 272 (Tex. App.—Waco

2007, pet. ref’d).    “Questions normally attendant to arrest, custody, or

administrative ‘booking’ procedure do not constitute ‘interrogation.’” Cross v.

State, 144 S.W.3d 521, 524 n.5 (Tex. Crim. App. 2004).

      As previously discussed, Amenderez’s interview with Cedillo was not for

purposes of interrogation, and in fact, there was no discussion at all concerning

any alleged offenses committing by Cedillo or pending charges that had resulted

in his incarceration, but rather the discussion was part of the routine booking,

classification, and photographing procedure.     Hence, we hold that Cedillo’s

statements did not stem from custodial interrogation and that article 38.22 was

not implicated.

      Cedillo also briefly asserts that article 38.21 of the Texas Code of

Criminal Procedure was violated in that his statements to Amenderez were not

made “freely and voluntarily . . . without compulsion or persuasion.” However,




                                       14
Cedillo cites no evidence to support his assertion, nor is any contained in the

record. We overrule Cedillo’s fourth point.

                             VI. Rule 403 Objection

      In Cedillo’s fifth point, he asserts that the trial court abused its discretion

in overruling his rule 403 objection. Tex. R. Evid. 403. Cedillo argues that the

testimony of Detective Reynolds during the punishment phase “was unfairly

prejudicial to [Cedillo] because it was used only to inflame the jury’s belief that

[Cedillo] had strong ties to gang activity since he was a juvenile.” Among other

things, rule 403 allows the exclusion of relevant evidence if its probative value

is substantially outweighed by the danger of unfair prejudice. Id.

      Assuming without deciding that the admission of Reynolds’s testimony

violated rule 403, it was clearly harmless.       Cedillo objected to Reynolds’s

testimony on the basis of rule 403 on two occasions.            The first objection

followed the question, “Was there a reason this search warrant was assigned

to the gang unit?” and the second objection followed the question, “Detective,

was there information that you had received in order for you to execute this

warrant . . . that [Cedillo] was involved in some gang activity?”

      Because the error is not constitutional, we apply rule 44.2(b), which

reads, “[A]ny other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A substantial

                                        15
right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750,

776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639,

643 (Tex. App.—Fort Worth 1998, pet. ref’d). In making this determination,

we review the record as a whole. See Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998). An error does not affect a substantial right if we have

“fair assurance that the error did not influence the jury, or had but a slight

effect.”   Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);

Johnson, 967 S.W.2d at 417.

      By the time Reynolds testified during the punishment phase regarding the

reason for the search warrant being assigned to the gang unit and regarding

information in connection with serving the warrant that Cedillo was involved in

some gang activity, the following evidence had already been admitted:

      •      Cedillo claimed membership in the past in the 21st Street
             gang and later in the Puro Tango Blast gang.

      •      Cedillo had gang membership tattoos and photographs of
             these tattoos were admitted into evidence.

      •      Puro Tango Blast’s typical gang activities.

      •      Cedillo had been arrested in the instant case after leaving a
             known gang house.


                                       16
      •     Cedillo’s multiple prior convictions, including possession of
            marijuana in 1999, interfering with public duties in 2002, and
            possession of methamphetamine in 2002.

      •     Reynolds was a member of the gang unit at the time he
            executed a warrant for Cedillo in March 1998, when Cedillo
            was sixteen.

      Considering the foregoing evidence and the standard of review for non-

constitutional error, any error in admitting Reynolds’s testimony was harmless.

Therefore, we overrule Cedillo’s fifth point.

                            VII. Motion for New Trial

      In Cedillo’s sixth point, he asserts that the trial court erred by not granting

his motion for new trial because of nonevidentiary documents that were

submitted to the jury to use during deliberation and for “other reasons.”

Specifically, Cedillo asserts that he is entitled to a new trial because

      the verdict was decided by lot or in a manner other than fair
      expression of the jurors’ opinion; evidence tending to establish
      [Cedillo’s] innocence was intentionally withheld thus preventing its
      production at trial; the jury received other evidence after retiring to
      deliberate; and the jury engaged in such misconduct that [Cedillo]
      did not receive a fair and impartial trial.

He also alleges that a new trial was warranted because of the admission of

evidence of his gang affiliation during the guilt-innocence phase of the trial and

because of the denial of his motions to suppress, which we have previously

addressed. He additionally complains that the State failed to prove beyond a


                                        17
reasonable doubt an aggravated assault case that was admitted during the

punishment phase.

      We review a trial court’s denial of a motion for new trial under the abuse

of discretion standard. State v. Herndon, 215 S.W.3d 901, 906–07 (Tex.

Crim. App. 2007). However, if a party provides no argument or legal authority

to support its position, the appellate court may properly overrule the point or

points as inadequately briefed. Tex. R. App. P. 38.1(h); Tong v. State, 25

S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001);

Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998), cert. denied,

526 U.S. 1070 (1999). And if a party does not refer the appellate court to the

pages in the record where the errors allegedly occurred, the appellate court may

also properly overrule those points as inadequately briefed. Lawton v. State,

913 S.W.2d 542, 554 (Tex. Crim. App. 1995), cert. denied, 519 U.S. 826

(1996), overruled on other grounds, Mosley, 983 S.W.2d at 263 n.18;

Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995). Cedillo fails

to make citations to the record to support his arguments that the verdict was

decided by lot or in a manner other than fair expression of the jurors’ opinion,

that the State intentionally withheld exculpatory evidence, that gang affiliation

evidence was improperly offered and admitted during the guilt-innocence phase

of trial, and that the aggravated assault case was not proven beyond a

                                       18
reasonable doubt.     He also fails to cite legal authority to support these

complaints, notwithstanding his citations to Mullins v. State, 37 Tex. 337,

339–40, 1873 WL 7267, at *3 (1872), and State v. Gonzalez, 855 S.W.2d

692, 694 (Tex. Crim. App. 1993), to support the statement that trial courts

have the discretion to grant new trials in the interest of justice.2 See Tex. R.

App. P. 38.1(h); Tong, 25 S.W.3d at 710; Mosley, 983 S.W.2d at 256;

Lawton, 913 S.W.2d at 554. Therefore, we overrule these portions of Cedillo’s

sixth point.




      2
        … Cedillo alleges that the State failed to supply the defense with
allegedly exculpatory evidence, “in violation of Brady v. Maryland.” When the
State suppresses evidence favorable to the accused, due process is violated
where the evidence is material either to guilt or punishment. Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963); Wyatt v. State,
23 S.W.3d 18, 27 (Tex. Crim. App. 2000). To prevail, Cedillo must present
evidence that (1) the State suppressed or withheld evidence; (2) the suppressed
evidence would have been favorable to him; and (3) the evidence was material
to his defense. Thomas v. State, 841 S.W .2d 399, 404 (Tex. Crim.
App.1992); Nelloms v. State, 63 S.W.3d 887, 890–91 (Tex. App.—Fort Worth
2001, pet. ref’d), cert. denied, 537 U.S. 960 (2002). The record reflects that
the State attempted to provide the evidence to Cedillo, that neither party could
access it because both lacked the proper technology to view the tape, and that
neither party knew what was on the tape.
       Cedillo also states that gang affiliation evidence “may be only admissible
as Article 37.07 evidence in the punishment phase of trial.” However, such
evidence may be admitted during the guilt-innocence phase if it is relevant to
motive, identity, intent, opportunity, preparation, plan, or absence of mistake.
Trevino v. State, 228 S.W.3d 729, 734 (Tex. App.—Corpus Christi 2006, pet.
ref’d). Cedillo presents us with no citation to case law or the record to support
his argument beyond his reference to article 37.07.

                                       19
      With regard to his contention that the jury engaged in misconduct such

that he did not receive a fair and impartial trial, apparently, the jurors

inadvertently saw a document labeled “Defendant’s Exhibit No. 6,” which was

not admitted into evidence, during the guilt-innocence phase. The exhibit is a

Setting Plea Offer Acknowledgment dated September 12, 2007, in which the

State recommend a plea bargain offer of ten years’ confinement for the offense

of aggravated assault. The exhibit does not state that Cedillo admitted any

culpability for the charge. On September 14, 2007, the jurors requested the

exhibit during the punishment phase, and the trial court informed them that it

had not been admitted into evidence.

      Cedillo alleged jury misconduct in his motion for new trial. To his motion,

he attached a copy of the jury note; the trial court’s response to the jury note;

a letter from the prosecutor explaining what she thought had happened 3 ; and


      3
      … The prosecutor’s letter explains that after the punishment trial, she
and the judge spoke to the jurors and the jurors asked what had happened to
Defense Exhibit 6, which they had apparently viewed during the guilt-innocence
phase of the trial. She stated that the foreman said, “it didn’t affect our verdict
or anything, but we did see it,” and that she thought that the exhibit might
have been passed to the jurors during Cedillo’s guilt-innocence case-in-chief,

      when you passed around the information on Celedon’s car
      registration and impound release. If Defense Exhibit 6 was lying on
      the end of the court reporter’s desk closest to the jury box, it could
      have been picked up with other evidence to be published to the
      jury. However, I do not know for sure in what phase of the trial

                                        20
a copy of Defendant’s Exhibit 6. Cedillo’s motion contained no supporting

affidavits. See Harmon v. State, 889 S.W.2d 521, 524 (Tex. App.—Houston

[14th Dist.] 1994, pet. ref’d) (stating that because jury misconduct constitutes

a ground of attack outside the record, a motion for new trial on this basis

requires the affidavit of a juror or some other person who was in a position to

know the facts, or must state some reason or excuse for failing to produce the

affidavits).

      After the trial court denied his motion for new trial without a hearing,

Cedillo filed a document entitled, “Bill of Exception,” in which he tendered

documentary evidence that he would have offered at a hearing on his motion

for new trial, including an affidavit from one of the jurors stating that the jury

received Defendant’s Exhibit No. 6 during the guilt-innocence phase.

      The State asserts that the trial court lacked jurisdiction to consider the

information attached to Cedillo’s bill of exception, interpreting it as an

attempted, belated amendment to Cedillo’s motion for new trial. See Tex. R.

App. P. 21.4.; Rivera-Reyes v. State, 252 S.W.3d 781, 789 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (“The trial court does not have




      the Exhibit was passed or how it happened. The exhibit was never
      sent into the jury room in either phase.


                                       21
jurisdiction to rule on an untimely motion or amendment.”). But the trial court

did not err by denying Cedillo’s motion for new trial regardless of the bill of

exception’s nomenclature. See Tex. R. App. P. 21.3; Bustamante v. State, 106

S.W.3d 738, 743 (Tex. Crim. App. 2003).

      Rule 21.3(f) of the rules of appellate procedure provides that a new trial

must be granted “when, after retiring to deliberate, the jury has received other

evidence.” Tex. R. App. P. 21.3(f). A two-prong test must then be satisfied

for the defendant to obtain a new trial:    (1) the evidence must have been

received by the jury, and (2) the evidence must be detrimental or adverse to the

defendant. Bustamante, 106 S.W.3d at 743.

      Cedillo complains that because of the alleged jury misconduct, he

“received a disproportionate sentence.” However, the alleged misconduct, if

any, occurred during the guilt-innocence phase, not during the sentencing

phase. By the conclusion of evidence during the sentencing phase, the jury

was well-informed about the events leading to the State’s plea bargain offer on

the aggravated assault charge that was the subject of the plea bargain offer.

And Cedillo has not explained how the evidence, one of his own exhibits, was

detrimental or adverse to him. Therefore, Cedillo was not entitled to a new trial

under rule 21.3(f), nor to a new trial under rule 21.3(g), which requires a new

trial be granted “when the jury has engaged in such misconduct that the

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defendant did not receive a fair and impartial trial.” Tex. R. App. P. 21.3(f), (g).

We overrule the remainder of Cedillo’s sixth point.

                                 VIII. Conclusion

      Having overruled all of Cedillo’s points, we affirm the trial court’s

judgment.




                                             BOB MCCOY
                                             JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2008




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