                                                                                     ACCEPTED
                                                                                03-14-00217-CR
                                                                                       3557828
                                                                      THIRD COURT OF APPEALS
     SEE AMENDED BRF                                                             AUSTIN, TEXAS
                                                                          12/21/2014 7:11:52 PM
     FILED ON 1/21/15                                                         JEFFREY D. KYLE
                                                                                         CLERK
                         No. 03-14-00214-CR
                         No. 03-14-00215-CR
                         No. 03-14-00216-CR                    FILED IN
                                                        3rd COURT OF APPEALS
                         No. 03-14-00217-CR                  AUSTIN, TEXAS
                                  !                     12/29/2014 3:42:52 PM
                      IN THE COURT OF APPEALS               JEFFREY D. KYLE
                                                                 Clerk
                  FOR THE THIRD DISTRICT OF TEXAS
                          AT AUSTIN, TEXAS

                                  !
                 JONATHAN MATTHEW PORTERIE,
                            Appellant
                                   !
                                  v.
                                   !
                       THE STATE OF TEXAS,
                               Appellee
                                !
                                  !
              On appeal from the 22nd Judicial District Court
                          of Hays County, Texas
    In Cause Nos. CR-13-0076, CR-13-0077, CR-13-0078, & CR-13-0920

                                  !
                        APPELLANT’S BRIEF
!
                                       James Gerard McDermott, II
                                        Thompson Salinas
                                        Rickers & McDermott, LLP
                                        8140 N. Mopac
                                        Westpark 4, Suite 250
                                        Austin TX 78759
                                        512.201.4099
                                        512.298.1129 (facsimile)
                                        james@centraltexaslawyers.com
                                        Attorney for Appellant
                                       !
                                       !
                     Oral Argument Not Requested
                             LIST OF PARTIES
                                      !
APPELLANT
Jonathan Matthew Porterie
!
      APPELLANT’S ATTORNEYS AT TRIAL
      Gina M. Jones                  Thomas C. Vaughn
      State Bar No. 24036855         State Bar No. 24060771
      Law Office of Gina Jones       Tommy Vaughn Law Firm
      200 N. Seguin Ave.             200 N. Seguin Ave.
      New Braunfels TX 78130         New Braunfels TX 78130
!
      APPELLANT’S ATTORNEY ON APPEAL
      James Gerard McDermott, II
      State Bar No. 24041438
      Thompson Salinas Rickers & McDermott, LLP
      8140 N. Mopac
      Westpark 4, Suite 250
      Austin TX 78759
!
APPELLEE
The State of Texas

      APPELLEE’S ATTORNEYS AT TRIAL
      Brian C. Erskine
      State Bar No. 24074182
      Gerard J. Perches
      State Bar No. 24040196
      Assistant Hays County District Attorneys
      712 South Stagecoach Trail, Suite 2057
      San Marcos TX 78666
!
      APPELLEE’S ATTORNEYS ON APPEAL

      Christopher Patrick Johnson
      State Bar No. 24032597
      Assistant Hays County District Attorney
      712 South Stagecoach Trail, Suite 2057
      San Marcos TX 78666
                                      !
                         TABLE OF CONTENTS
                                 !
LIST OF PARTIES                                   i
TABLE OF CONTENTS                                ii
TABLE OF AUTHORITIES                            iii
STATEMENT OF THE CASE                            1
ISSUES PRESENTED                                 2
STATEMENT OF FACTS                               3
SUMMARY OF ARGUMENT                              3
ARGUMENT                                         4
              ISSUE I                            4
             ISSUE II                           11
             ISSUE III                          14
             ISSUE IV                        17, 19
             ISSUE V                         17, 21
PRAYER                                          23
CERTIFICATE OF COMPLIANCE                       24
CERTIFICATE OF SERVICE                          24

                                 !
                         TABLE OF AUTHORITIES
                                       !
CASES
Boyle v. State, No. 69,743, 1991 Tex. Crim. App.
LEXIS 102 (Tex. Crim. App. May 15, 1991) (opinion
on rehearing) (unpublished)                                      8
Brown v. State, 576 S.W.2d 820 (Tex. Crim. App. 1978)           22
Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App.
2012)                                                            7
DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988)         20
Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983)            7
Espinoza v. State, 955 S.W.2d 108 (Tex. App.—Waco 1997,
pet. ref’d)                                                     20
Evans v. State, 677 S.W.2d 814 (Tex. App.—Fort Worth 1984,
no pet.)                                                        13
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006)         20
Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992)         13
Jackson v. Virginia, 443 U.S. 307 (1979)                        10
Kirby v. State, No. 05-93-00214-CR, 1995 Tex. App. LEXIS
3907 (Tex. App.—Dallas Mar. 15, 1995) (not designated for
publication)                                                    15
Leal v. State, 975 S.W.2d 636 (Tex. Crim. App. 1998)             7
Lee v. State, 442 S.W.3d 569 (Tex. App.—San Antonio 2014,
no pet.)                                                        13
Neil v. Biggers, 409 U.S. 188 (1972)                            15
Pierson v. State, 398 S.W.3d 406 (Tex. App.—
Texarkana 2013, aff’d on other grounds)                          7
Simmons v. United States, 390 U.S. 377 (1968)                15, 17
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014)        21
United States v. Wade, 388 U.S. 218 (1967)                      16
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012)         10


CODES AND RULES
TEX. CODE CRIM. PROC. art. 38.07                             22
TEX. PEN. CODE § 1.07(a)(11)                                 20
TEX. PEN. CODE § 21.15                                      1, 8
TEX. PEN. CODE § 22.011                                 1, 8, 22
TEX. PEN. CODE § 22.021                                       8
TEX. PEN. CODE § 30.02                                 1, 19, 20
TEX. R. EVID. 412                                           6-9


SECONDARY AUTHORITIES
Brown & Rondon, TEXAS RULES            OF   EVIDENCE
HANDBOOK (2015 ed.)                                           8
!




    !vi
TO THE HONORABLE COURT OF APPEALS: 

       COMES NOW Appellant, Jonathan Matthew Porterie, and submits this brief

on appeal from four judgments of conviction in the 22nd Judicial District Court of

Hays County, R. Bruce Boyer, presiding.1

                                  STATEMENT OF THE CASE

       The State tried Appellant under four indictments, which were joined for trial:

three charges of burglary of a habitation with intent to commit or attempted to

commit or committed sexual assault ((1) trial court number CR-13-0076, appellate

cause 03-14-00215-CR; (2) trial court number CR-13-0077, appellate cause

03-14-00216-CR; & (3) trial court number CR-13-0078, appellate cause

03-14-00217-CR); and one charge of burglary of a habitation with intent to commit

improper photography (trial court number CR-13-0920, appellate cause

03-14-00214-CR).2 CR76: 8, 24; CR77: 6, 22; CR78: 8, 25; CR920: 5, 14; see

TEX. PEN. CODE §§ 21.15; 22.011; 30.02(a)(1), (d). A jury heard evidence and

found Appellant guilty on all charges of burglary with intent to commit or

attempted to commit or committed sexual assault and guilty in CR-13-0920 of the


1There are four judgments in four different cause numbers. Because they were tried together on
the State’s motion, the briefs submitted in each appellate case are identical.

2 For ease of reference to the records, in the text of the brief the cases will be referred to by their
trial-court cause numbers. The Clerk’s records for each will be labeled by the unique portions of
the trial-court cause numbers. For example, in the text the case involving improper photography
(appellate cause 03-14-00214-CR) will be referred to as CR-13-0920 and its clerk record will be
cited as CR920: xx.


                                                  !1
lesser-included offense of improper photography. CR76: 98; CR77: 94; CR78: 100;

CR920: 59; RR7: 107-08.3 This appeal followed.

                                  ISSUES PRESENTED

                                         ISSUE I
                                              !
       The Court erred in excluding testimony of Michaud and Dawson
       under Rule 412 of the Texas Rules of Evidence.
       !
                                        ISSUE II
                                              !
       The evidence is insufficient to show that Appellant committed a
       burglary against Lasley because the State offered no evidence that
       Appellant entered her room without her effective consent.
       !
                                        ISSUE III
                                              !
       The evidence is insufficient to show that Appellant committed a
       burglary against Bell because the State offered no evidence to
       support Appellant’s identity as the person involved in that case.
       !
                                        ISSUE IV
                                              !
       The evidence is insufficient to show that Appellant committed a
       burglary against Tippens because the State offered no evidence
       that Appellant lacked Tippens’s effective consent to enter her
       room.
                                    ISSUE V
                                              !
       The evidence is insufficient to show that Appellant committed the
       lesser-included offense of sexual assault against Tippens because
       the State offered no evidence that, from Appellant’s perspective,
       he lacked Tippens’s consent to engage in sexual activity with her.
       !
       !
       !
       !
3The jury determined punishment in these cases, but Appellant raises no punishment issue on
appeal. CR76: 108, 110; CR77: 103, 105; CR78: 109-11; CR920: 68, 70; RR9: 5-7.


                                             !2
                              STATEMENT OF FACTS

      Appellant was a student at Texas State in San Marcos, as were the alleged

victims. However, the four convictions that resulted from this trial concern four

sets of evidence that are generally discrete from each other. They were tried

together on the State’s motions for joinder for trial. CR76: 24; CR77: 22; CR78:

25; CR920: 14. For ease of analysis, the facts will be reviewed separately under the

arguments related to each conviction.

                        SUMMARY OF ARGUMENT
                                           !
      In Cause CR-13-0920, the trial court erred in excluding certain testimony of

Michaud and Dawson under Rule 412 of the Texas Rules of Evidence. Appellant’s

beliefs and culpable mental state were directly at issue in the improper

photography case, and knowledge of the sexual history shared between all four

people involved in that case was vital for the defense.

      In Cause CR-13-0076, the State offered no evidence that Appellant entered

Lasley’s room without her effective consent. The State failed to prove a burglary in

that case.

      In Cause CR-13-0077, the evidence is insufficient because the State failed to

offer sufficient evidence to prove Appellant’s identity as the perpetrator, and so a

conviction cannot be sustained on this record.




                                          !3
       Finally, in Cause CR-13-0078, the evidence is insufficient to show that

Appellant committed a burglary against Tippens because the State offered no

evidence that Appellant entered the apartment or Tippens’s room without her

effective consent or that, from Appellant’s perspective, he lacked consent to engage

in sexual contact with Tippens.

       The convictions in all four causes should be reversed. In Cause CR-13-0920,

the case should be reminded for a new trial on the offense of improper

photography. For all three of the other convictions, this Court should render a

judgment of acquittal.

                                        ARGUMENT

                                           ISSUE I
                                               !
       The Court erred in excluding testimony of Michaud and Dawson
       under Rule 412 of the Texas Rules of Evidence.4
       !
       In Cause CR-13-0920, the State charged Appellant with burglary of a

habitation by committing or attempting to commit the offense of improper

photography. CR920: 5. The alleged victim of the burglary was Erica Michaud.

CR920: 5. The jury convicted Appellant of the lesser-included offense of improper

photography. CR920: 59; RR7: 107-08.

!

4 This testimony and some photographs are part of the appellate record but under seal. On this
Court’s order, counsel was able to review this evidence. Because counsel reviews that evidence,
this brief is submitted as containing sensitive material.


                                              !4
Facts

        Bryonna Dawson, Erica Michaud, Dashawn Singletary, and Appellant were

friends. RR4: 162. On August 15, 2012, Dawson and Michaud went to the Vault, a

bar in San Marcos. RR4: 162. Appellant and Singletary were at the bar as well.

RR4: 164-65. It was common for the four of them to be together. RR4: 190-91. At

the end of the evening, they went back to Michaud’s house with Singletary. RR4:

166, 197-98. Neither Michaud nor Dawson remembered inviting Appellant over.

RR4: 171-73, 199-200. However, at 1:55 am Dawson texted Appellant on

Michaud’s phone and invited him to join them at the house. RR6: 132; RR7: 68;

DX1. Dawson went to sleep in Michaud’s bed while Michaud and Singletary

talked nearby in the bedroom. RR4: 167. At some point, a picture was taken of the

three of them in bed, asleep and naked. RR169; SX 2. Michaud testified that she

did not consent to her picture being taken while sage was in bed. RR4: 203.

Michaud did not invite Appellant over that night, but she believed that Dawson

might have, while using Michaud’s phone. RR5: 17-18, 24-25.

Rule 412 testimony

        The trial court held two hearings outside the presence of the jury under Rule

412: one for some testimony of Dawson and one for some testimony of Michaud.

The trial court first heard from Dawson. Dawson did not remember if she had sex

with Appellant that night, but she had a sexual relationship with him before that

evening. RR4: 177. In fact, on occasion all four of them—Dawson, Michaud,

                                          !5
Singletary, and Appellant—had sex together in a group. RR4: 179-81. They had all

slept in the same bed. RR4: 179. She did not think anyone took any photos or

videos. RR4: 182. Some might have described the relationship between the four as

an open relationship. RR4: 182-83.

      Next, the trial court heard from Michaud. Michaud stated that she had stayed

at Dawson’s apartment in the past with Appellant, Singletary, and Dawson. RR4:

211. She had had sex with Dawson and Singletary together in the past. RR4: 211.

She had consented in the past to some sexual activity with Appellant in the

presence of Dawson. RR4: 214-15.

Application of Rule 412

      The relevant portions of Rule 412 are as follows:

      In a prosecution for sexual assault or aggravated sexual assault, or
      attempt to commit sexual assault or aggravated sexual assault,
      evidence of specific instances of an alleged victim’s past sexual
      behavior is also not admissible, unless:
      !
      *****
      (2) it is evidence:
      !
      ******
      !
      (B) of past sexual behavior with the accused and is offered by the
      accused upon the issue of whether the alleged victim consented to the
      sexual behavior which is the basis of the offense charged;
      !
      (C) that relates to the motive or bias of the alleged victim; . . . and
      !
      (3) its probative value outweighs the danger of unfair prejudice.
      !
                                           !6
TEX. R. EVID. 412. First, by “its plain language, Rule 412 only applies to

‘the alleged victim’s past sexual behavior.” Pierson v. State, 398 S.W.3d 406,

414 n.6 (Tex. App.—Texarkana 2013, aff’d on other grounds) (quoting TEX.

R. EVID. 412). In case CR-13-920, the State indicted Appellant for burglary

of a habitation with intent to commit or committed the offense of improper

photography. CR920: 5. Michaud was the alleged victim of the burglary,

because it was her house. RR4: 166, 197-98.

      As a general rule, the State is bound by its charging decision. The

State is bound by the allegations in the charging instrument. Crenshaw v.

State, 378 S.W.3d 460, 465 (Tex. Crim. App. 2012); Leal v. State, 975 S.W.

2d 636, 639 (Tex. Crim. App. 1998); Doyle v. State, 661 S.W.2d 726, 729

(Tex. Crim. App. 1983). And Rule 412 narrows the right to cross-

examination only with respect to an “alleged victim,” not any possible

victim. TEX. R. EVID. 412.

      Dawson was not the alleged victim of the burglary, and so Rule 412

had no bearing on her testimony. In addition, the jury convicted Appellant

only for the lesser-included offense of improper photography. As State’s

exhibit’s 1 and 2 show, Dawson was entirely covered in the photographs that

were taken. Dawson was not a victim, nor was she alleged to be the victim,

of this offense. Therefore, her testimony was not subject to Rule 412 and

should have been admitted.

                                         !7
      The trial court also improperly excluded Michaud’s testimony under

Rule 412. Although she was the alleged victim, Rule 412 only applies to

cases involving “sexual assault or aggravated sexual assault, or attempt to

commit sexual assault or aggravated sexual assault.” TEX. R. EVID. 412.

There is some authority for extending the language of the rule “whenever

any part of the charged conduct involves an alleged sexual assault.” Brown

& Rondon, TEXAS RULES         OF   EVIDENCE HANDBOOK, 348 (2015 ed.)

(quoting advisory committee’s note to FED. R. EVID. 412). For example,

Rule 412 would apply in a capital-murder prosecution when the underlying

offense that enhances the murder to a capital murder was aggravated sexual

assault or kidnapping with intent to commit a sexual assault. See Boyle v.

State, No. 69,743, 1991 Tex. Crim. App. LEXIS 102, at *21-34 (Tex. Crim.

App. May 15, 1991) (opinion on rehearing) (unpublished).

      No part of the charge of improper photography “involves an alleged

sexual assault” or an attempt to commit a sexual assault. See TEX. R. EVID.

412. Sexual assault or attempted sexual assault involves some sort of contact

or penetration. See TEX. PEN. CODE §§ 22.011, 22.021. Improper

photography only regulates photography or other means of the transmission

of images. See TEX. PEN. CODE § 21.15. Without regard to whether Michaud

or Dawson, or both, were victims in this case, Rule 412 simply does not



                                         !8
apply. The trial court erred by applying Rule 412 to exclude those portions

of the testimonies of Dawson and Michaud.

       In any event, whether Appellant had consent to enter the house and

whether he had consent to take the photographs were central issues to the

defense. Defense counsel narrowly tailored the Rule 412 hearing evidence.

Consent was the central issue, and the history of consent was the only topic

of the Rule 412 hearings. See RR4: 176-89; 211-19. A rational application of

the balancing test results in the conclusion that the narrowly tailored

evidence was probative for the defensive theory and outweighed the

potential prejudice by its admission. Even as the trial court noted, without

the evidence, the jury was left misinformed about the actual nature of the

relationships at issue. RR4: 101-02. By excluding the evidence, the jury was

given the impression that the four people involved in the case were friends

who drank together, rather than four people in an ongoing sexual

relationship.

Harm

       The exclusion of this testimony harmed Appellant. The nature of the

friendship and the ongoing relationships between Appellant, Singletary,

Michaud, and Dawson were central to Appellant’s defense. Yet, as a result of

the Rule 412 rulings, and as noted by the trial court itself, “I don’t know that

you went—anybody went into a lot of detail or degree as to what

                                          !9
‘relationship’ means.” RR4: 101-02. Even though Michaud denied giving

consent to ever being photographed, as a result of the exclusion, the jury was

denied the ability to weigh that claim against her general credibility in light

of the relationships and history. RR4: 216. Certainly, the jury believed that

Appellant had consent to enter the house because the jury convicted him of

improper photography but acquitted him of the burglary. RR5: 17-18, 24-25.

The jury only heard that these four people were friends and that they drank

together. The ruling misled the jury and so bolstered the claim of non-

consent with actual, court-blessed misinformation.

      The trial court’s Rule 412 rulings were in error and substantially

harmed Appellant. The Court should reverse the judgment of conviction in

CR-13-0920 and remand the case for a new trial on the lesser-included

offense of improper photography.

                    INTRODUCTION TO ISSUES II THROUGH V
!
      Each of the remaining issues concern the convictions for burglary and each

is a claim of insufficiency of the evidence. Legal sufficiency review is required by

due process, and the standard of review is well-established: appellate courts review

the sufficiency of the evidence in a criminal case by viewing all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); see Jackson v. Virginia,

                                         !10
443 U.S. 307, 318 (1979). It is important to note that each conviction is based on a

discrete set of facts, with little or no overlap between them, and the sufficiency

issues are therefore different in each issue.

      The events in these cases took place mostly at the University Club

Apartments in San Marcos. RR4: 119. Each apartment in the complex consisted of

a common area with four bedrooms. RR4: 125. One bedroom was downstairs and

the rest were upstairs. RR4: 125. Each bedroom had its own key, and each resident

individually signed a lease for the bedroom and joint responsibility for common

areas. RR4: 125-26. Appellant was a resident of the complex, but he was evicted

on September 7, 2012. RR4: 132-33.

                                       ISSUE II
                                            !
      The evidence is insufficient to show that Appellant committed a
      burglary against Lasley because the State offered no evidence that
      Appellant intentionally or knowingly entered her room without
      her effective consent.
      !
      This issue concerns the conviction in trial court cause CR-13-0076.

      Alexandria Lasley was a student at Texas State in 2012 and lived at the

University Club apartments. RR5: 29-30. Appellant and Singletary lived in an

apartment across the street. RR5: 50. Lasley lived in an upstairs bedroom. RR5: 30.

She had dated Singletary in the past and knew Appellant. RR4: 30, 45. Jasmine

Haynes lived in the downstairs bedroom and had been friends with Appellant.

RR5: 30-31, 50. Haynes regularly invited Singletary and Appellant into the



                                           !11
apartment. RR5: 57-58. According to Haynes, in Appellant’s apartment his

bedroom is in the same location in the layout as Lasley’s is in hers. RR6: 90.

Haynes believed Appellant did not like Lasley, and he had never made any

attempts to make any sexual advances to her. RR6: 90. Appellant had stayed in the

apartment on several occasions. RR6: 92. Doors were generally unlocked, and

Lasley’s door was usually left open when she was sleeping. RR6: 93.

      On September 1, 2012, Haynes and Appellant were drinking at bars in San

Marcos until around 2:30 a.m., when they went back to her apartment. RR6: 88.

Haynes invited him to the apartment, and Appellant was going to sleep there. RR6:

88, 91. Haynes went to bed, and Appellant went to the bathroom. RR6: 88.

      Lasley had been working at a bar in Austin that night. RR5: 32. When she

got home, she went to bed and thought she locked her bedroom door. RR4: 32-33.

Sometime after 4:40 am, Lasley woke up because she felt a hand on her leg. RR5:

35. She started screaming. RR5: 35. She opened her eyes and saw that Appellant

was the person touching her. RR5: 36. A roommate and the roommate’s boyfriend

ran into the room, Appellant asked that Singletary not be told about the incident,

and he ran. RR5: 36-37. Lasley called Singletary and then went downstairs. RR5:

37. Appellant was still there. RR5: 37.

      Around that time, Haynes woke up because Lasley was upset and standing in

her doorway with Appellant, who was naked. RR6: 89-90. Appellant seemed



                                          !12
confused and drunk. RR6: 89-90. Lasley wanted Appellant to leave, and he did.

RR5: 37; RR6: 91.

      The determination of effective consent to enter a building is fact-specific.

See Lee v. State, 442 S.W.3d 569, 580 (Tex. App.—San Antonio 2014, no pet.);

Evans v. State, 677 S.W.2d 814, 818 (Tex. App.—Fort Worth 1984, no pet.). A

determination of the issue of consent to entry in burglary prosecutions often rests

on circumstantial evidence. Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim.

App. 1992). Whether a door is open or unlocked is not necessarily determinative.

See Lee, 442 S.W.3d at 580.

      In this case, the residents of the apartment, including Haynes and Lasley,

extended a general welcome to Appellant to be in the apartment. RR6: 91-93.

Lasley’s door was generally open, and Lasley never communicated any restrictions

to Appellant. RR6: 91-93. Lasley thought she locked her door that night. RR4:

32-33. However, Haynes testified that was not her general habit, and there was no

other sign or indication would support the idea that the door had been unlocked or

forcibly opened by Appellant. RR6: 91-93. Appellant may have been confused as

to where he was, but nothing in the process of entering the room would have been

any different than any other occasion on which he might have entered the room

with permission. See generally RR6: 91-93. Thus, this Court should reverse the

judgment of conviction in Cause CR-13-0076.

!
                                        !13
                                      ISSUE III
                                            !
        The evidence is insufficient to show that Appellant committed a
        burglary against Bell because the State offered no evidence to
        support Appellant’s identity as the person involved in that case.
        !
        This issue concerns the conviction in the trial court in cause CR-13-0077.

Facts

        Jacie Bell also lived at University Club in the fall of 2012. RR5: 83. She did

not know Appellant or his name. RR5: 88.

        On September 7, she was in bed when woke up and saw a man standing at

the foot of her bed. RR5: 85. She jumped up and he crouched down. RR5: 86. She

asked him to leave several times, he didn’t move, so she got her phone to call the

police. RR5: 86. The man ran downstairs. RR5: 86. Bell looked out her window

but did not see anyone. RR5: 89-90. She later discovered that her front door was

locked but the back door was unlocked. RR5: 91-92.

        When police officers had responded to her apartment that night, they showed

her the picture of only one person to help her identify who the man in her bedroom

was. RR5: 71-73; 97. Bell had told officers when they arrived that the man was “a

tall, thin black male with very little hair” and that “he had light-colored plaid shorts

on.” RR5: 72, 78. Outside in the apartment complex, the police found Appellant,

who lived there, and he was wearing “Carolina blue basketball shorts.” RR5: 79;

SX 15. Appellant was not the only black male who lived at the complex, but

officers did not detain, talk to, take pictures of, or in any other way investigate any


                                           !14
other black males. RR5: 79. The police took his picture only because he was

outside at the apartment complex, that he lived in, when they arrived. RR5: 71-73;

97. They showed Bell no other pictures than that of Appellant. RR5: 80. In trial a

year and a half later, Bell identified Appellant as the person in her bedroom that

night based on her memory that she “looked at him straight in the face for, like I

said, over a minute. I knew it was a black male who was not wearing a shirt and a

medium to small frame. And that’s exactly what I told—told the police whenever I

called.” RR5: 92-93.

Identification

      Improperly conducting a photographic lineup may result in an erroneous

identification. Simmons v. United States, 390 U.S. 377, 383 (1968). For instance, if

the police show a witness only one picture of a single individual, or display a series

of pictures of several people in which the photo of one person recurs or is

emphasized, a danger of misidentification arises. Id. “Unnecessarily suggestive

confrontations create an unwarranted and extremely high risk of irreparable

misidentification.” Kirby v. State, No. 05-93-00214-CR, 1995 Tex. App. LEXIS

3907, at *5-6 (Tex. App.—Dallas Mar. 15, 1995) (not designated for publication)

(citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). “Regardless of how the initial

misidentification comes about, the witness thereafter is apt to retain in memory the

image of the photograph rather than of the person actually seen, reducing the

trustworthiness of subsequent lineup or courtroom identification.” Simmons, 390

                                          !15
U.S. at 384. “It is a matter of common experience that, once a witness has picked

out the accused at the line-up, he is not likely to go back on his word later on, so

that in practice the issue of identity may (in the absence of other relevant evidence)

for all practical purposes be determined there and then, before the trial.” United

States v. Wade, 388 U.S. 218, 229 (1967).

      In this case, officers showed Bell the picture of only one person, Appellant,

and pulled her outside to look only at him and nobody else. RR5: 71-73; 97.

However, Bell had told officers when they arrived that the man in her room “had

light-colored plaid shorts on.” RR5: 72, 78. When Appellant was found moments

later, he was wearing “Carolina blue basketball shorts.” RR5: 79; SX 15. Appellant

was not the only black male who lived at the complex. RR5: 79. Officers did not

conduct any further investigation or search for anyone who actually matched the

description given by Bell. RR5: 79. The police took his picture only because he

was outside at the apartment complex, that he lived in, when they arrived. RR5:

71-73; 97.

      Even if the Court were to consider the evidence in the other cases tried with

this one, the identification does not pass Constitutional muster. In each of the other

cases, Appellant knew everyone involved. He had been invited into the residences,

either on the night in question or as a general habit. In this case, the victim was a

stranger and did not know Appellant. The person in her room was unknown to her.

Entry had been through a backdoor that was left unlocked by mistake. There is no

                                          !16
common scheme or detail that links Appellant actions in the other offenses to the

offense that Bell suffered. In fact, consideration of the other offenses compounds

the error made by law enforcement in this case by ignoring the facts of this case to

link Appellant from the others. Thus, the jury was lead to the same unnecessarily

suggestive identification that Bell was.

      The likelihood of irreparable misidentification violates a defendant’s due

process rights. Simmons, 390 U.S. at 384. Thus, the Constitution requires appellate

courts to reverse convictions that are directly or indirectly based on a pretrial

identification “so impermissibly suggestive it created a very substantial likelihood

of irreparable misidentification.” Id. The Court should therefore reverse the

judgment of conviction in Cause CR-13-0077.

                                      ISSUE IV
                                            !
      The evidence is insufficient to show that Appellant committed a
      burglary against Tippens because the State offered no evidence
      that Appellant lacked Tippens’s effective consent to enter her
      room.
      !
                                      ISSUE V
                                            !
      The evidence is insufficient to show that Appellant committed the
      lesser-included offense of sexual assault against Tippens because
      the State offered no evidence that, from Appellant’s perspective,
      he lacked Tippens’s consent to engage in sexual activity with her.
      !
      These issues concern the conviction in trial court cause CR-13-0078.

!
!
                                           !17
Facts

        In November 2012, LeTesha McDuffie was living in an apartment at

University Club. RR5: 113-14. She had three roommates, including Christian

Tippens and Dahlia Zuniga. RR5: 114, 138, 189. McDuffie and Zuniga knew

Appellant through Haynes. RR5: 115, 141. Appellant often came to the apartment

to visit Tippens. RR5: 116. He was living with Singletary at the time but had been

evicted from his lease. RR5: 116-17, 133. McDuffie, Tippens, and Zuniga did not

normally lock the front door but rather had an open-door policy with friends,

including Appellant. RR5: 128, 134, 142, 153-54.

        On November 4, McDuffie, Tippens, Haynes, and another friend went to

some bars in Austin. RR5: 117-21, 190-91. When they got home later that night,

they saw Appellant driving into the parking area in front of the apartment. RR5:

122. They greeted Appellant then went into their own apartments. RR5: 125.

According to McDuffie, Appellant walked toward Singletary’s apartment. RR5:

125. According to Haynes, Appellant walked with McDuffie and Tippens into their

apartment. RR6: 100. Although she seemed intoxicated, Tippens walked in the

parking lot by herself, into the apartment by herself, up the stairs by herself, and

into her bedroom by herself. RR5: 125-26. McDuffie changed clothes and then

drove to Cabana Beach. RR5: 132.

        Zuniga had stayed home with a friend and the friend’s daughter. RR5: 148.

She heard the others come home, and she locked her bedroom door so nobody

                                         !18
would disturb the child. RR5: 148-49, 158. In the morning, she went into the

common area and found Tippens crying. RR5: 150. Police were also there, and the

front door was open. RR5: 150. After the police left, she took Tippens to the

hospital. RR5: 152-53.

      Tippens did not remember the ride from Austin back to San Marcos. RR5:

193. Her first memory after leaving Austin was being in her bathroom and

throwing up because of her intoxication. RR5: 193-94. She saw Appellant in the

doorway to her bathroom. RR5: 194. She asked him why he was there, and he

responded that he was “protecting [her] from dreadheads.” RR5: 195. She next

remembers being on her bed with Appellant nearby, who was touching her. RR5:

196. She passed out again and then awoke with his penis inside her. RR5: 196. She

told him it hurt. RR5: 197. When the sexual encounter ended, she took a shower.

RR5: 198. Afterwards, Appellant was gone. RR5: 198. She did not remember if she

told Appellant if she consented or not to the sexual encounter. RR5: 219-20.

      In the morning another friend came into her room to wake her. RR5: 199.

Tippens was naked. RR5: 199. She called the police then went to the hospital for a

SANE exam. RR5: 200; RR6: 34-74. After the event, Tippens no longer had any

relationship with her roommates. RR5: 203-04.

Issue IV: Burglary

      To convict Appellant of burglary, the State had the burden to prove that he

entered Tippens’s room without her effective consent. TEX. PEN. CODE § 30.02; see

                                        !19
CR78: 8, 93. The gravamen of the offense is the entry itself, and therefore if the

entry was with the effective consent of Tippens, no burglary occurred. See Ex parte

Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); DeVaughn v. State, 749

S.W.2d 62, 65 (Tex. Crim. App. 1988). “Consent” means “assent in fact, whether

express or apparent. TEX. PEN. CODE § 1.07(a)(11).

      Finally, although the State charged Appellant broadly under section 30.02 of

the Penal Code, it abandoned the allegation that Appellant entered Tippins’s room

with the intent to sexually assault her. See CR78: 93. The Court only charges the

jury to determine in Appellant entered her room and “attempted to commit or

committed” sexual assault, thus limiting the jury’s consideration to section

30.02(a)(3) of the Penal Code. As a result, Appellant’s intent at the time of entry is

the defining evidentiary point and is independent of the question of whether he

committed or attempted to commit a sexual assault while inside. See Espinoza v.

State, 955 S.W.2d 108, 111 (Tex. App.—Waco 1997, pet. ref’d). In other words, it

does not matter what Appellant intended to do when he entered, only whether his

entry into the apartment was with consent. See id.

      In this case, the record evidence is straightforward. McDuffie, Tippens, and

Zuniga did not normally lock the front door. RR5: 128, 134, 142, 153-54. They had

an open-door policy with friends, including Appellant. RR5: 128, 134, 142,

153-54. Appellant often came to the apartment to visit Tippens. RR5: 116. There

had been other people in the parking lot that night when the group returned from

                                          !20
Austin. RR6: 100. When Tippens saw Appellant in the doorway to her bathroom.

she asked him why he was there. RR5: 194-95. He responded that he was

“protecting [her] from dreadheads.” RR5: 194-95. Tippens did not indicate that

Appellant should not have been there or that she was surprised or upset that he was

there. See RR5: 194-95.

      This record lacks any evidence to show that Appellant lacked consent to be

in the apartment or to be in Tippens’s room at the time of his entry. Rather, it shows

that he did have consent. The Court should reverse the conviction in this case and

render a judgment of acquittal or reform the judgment, dependent on the Court’s

resolution of Issue V, below.

Issue V: Sexual Assault

      The evidence is insufficient to support a conviction for burglary because

Appellant had effective consent for his entry, as argued above. Therefore, the Court

must next turn to the proper remedy. In deciding whether to reform the judgment to

reflect a conviction for a lesser-included offense, the Court “must answer two

questions: 1) in the course of convicting the appellant of the greater offense, must

the jury have necessarily found every element necessary to convict the appellant

for the lesser-included offense; and 2) conducting an evidentiary sufficiency

analysis as though the appellant had been convicted of the lesser-included offense

at trial, is there sufficient evidence to support a conviction for that offense?”

Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). Appellant

                                          !21
concedes that the answer to the first question is affirmative, because the lesser-

included offense of sexual assault was included in the jury charge. See CR78:

93-94. Therefore, the only question is whether the evidence is sufficient to support

a sexual-assault conviction. The evidence is insufficient to support a finding that

the sexual encounter was nonconsensual.

      Generally, a conviction for sexual assault could be “supportable” on the

uncorroborated testimony of the victim. See TEX. CODE CRIM. PROC. art. 38.07(a).

However, in this case the issue is whether the sexual encounter was consensual

from Appellant’s perspective, and the issue of consent must be determined from the

totality of the circumstances in each particular case. See Brown v. State, 576 S.W.

2d 820, 823 (Tex. Crim. App. 1978); R5: 195. In this case, consent could be

analyzed from three different positions. First, from the general definition, consent

is “assent in fact, whether express or apparent. TEX. PEN. CODE § 1.07(a)(11).

Next, if Appellant did not receive consent and Appellant knew “the other person is

unconscious or physically unable to resist” or if he knew that “the other person is

unaware” of the sexual encounter. TEX. PEN. CODE §§ 22.011(b)(3), (5).

      When the group returned from Austin and saw Appellant, Tippens walked in

the parking lot by herself, into the apartment by herself, up the stairs by herself,

and into her bedroom by herself. RR5: 125-26. Appellant had not been with then

that night and so did not know anything about how much she had to drink. RR5:

117, 122. He could only have judged the situation by what he saw. Tippens herself

                                         !22
did not remember if she told Appellant if she consented or not to the sexual

encounter. RR5: 219-20. There is no evidence in this record that Tippens did not

consent to the sexual encounter, because she did not remember if she had. RR5:

219-20. There is no evidence in this record that Appellant knew that Tippens was

unconscious, unaware, or unable to resist. She had spoken to him in her bathroom,

she had been walking and talking in the parking lot, and she had been able to walk

upstairs to her bedroom. RR5: 125-26. The fact that she was upset the morning

after it happened has no bearing on what Appellant knew when it happened.

      The evidence is insufficient to support a conviction for for the lesser-

included offense sexual assault in Cause CR-13-0078. Therefore, neither is the

evidence sufficient to support a burglary conviction. The Court should reverse the

conviction and render a judgment of acquittal.

                                     PRAYER
                                         !
      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court

reverse the judgments of conviction of the district court. In Cause CR-13-0920

(appellate cause 03-14-00214-CR), the case should be reminded for a new trial on

the offense of improper photography. For all three of the other convictions, this

Court should render judgments of acquittal.

      Appellant prays for any such further relief to which he may be entitled.

                                Respectfully submitted,

                                /s/ James Gerard McDermott, II

                                        !23
                               !
                               James Gerard McDermott, II
                               Thompson Salinas Rickers & McDermott, LLP
                               8140 N. Mopac
                               Westpark 4, Suite 250
                               Austin TX 78759
                               512.201.4099
                               512.298.1129 (facsimile)
                               james@centraltexaslawyers.com
                               Attorney for Appellant
                               !
                         CERTIFICATE OF COMPLIANCE
!
      I hereby certify that this brief complies with Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is 5220
words, including headers and footnotes.

                                             /s/ James Gerard McDermott, II
                                             James Gerard McDermott
!
                            CERTIFICATE OF SERVICE
!
      I hereby certify that a true copy of the foregoing document was served, by
agreement, by email and by electronic service on December 21, 2014 to:

      Christopher Patrick Johnson
      State Bar No. 24032597
      Assistant Hays County District Attorney
      712 South Stagecoach Trail, Suite 2057
      San Marcos TX 78666
!
!
!
                                             /s/ James Gerard McDermott, II
                                             James Gerard McDermott




                                       !24
