Opinion issued August 30, 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
                           MEMORANDUM OPINION

      A jury found appellant Talawrence Donyea Tennell guilty of capital murder

in the death of a seven-month-old baby girl. 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 re-urges 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 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 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




      Pursuant to its docket equalization authority, the Supreme Court of Texas
      transferred this appeal from the Court of Appeals for the Tenth District of
      Texas 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.

                                           2
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.

      One afternoon, Harris left Hailey at home, and she asked Tennell to watch

the baby. When Harris returned home approximately two hours later, Tennell was

holding Hailey. The baby was unresponsive, and her forehead was bruised. Harris

started CPR and called 911. An ambulance responded, and Hailey was transported

to the hospital where she was later pronounced dead. Her cause of death was

determined to be blunt-force injuries.

      That same evening, detectives of the Bryan Police Department interviewed

Tennell. He told the detectives that the previous evening, a plastic mouthwash

bottle containing liquid PCP (phencyclidine) burst in his pants pocket. He claimed

that the drug contacted his skin, and he started to “trip” from it. Tennell stated that

Hailey was sleeping when Harris left, and subsequently he also fell asleep.

According to his statement, when he woke, Hailey was on the floor, and she was

unresponsive.




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

hospital, had blood drawn for a drug test, and was later 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.

      Harris testified that Tennell’s behavior was normal when he returned home

on the evening before Hailey’s death. When Harris left the next day, 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 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


                                         4
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.

      The emergency room 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


                                            5
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

whether there might be behavioral issues due to the drug use. When the paramedic

asked follow-up questions about Tennell’s drug usage, 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


                                         6
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. 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.

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

charge which 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 also 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 he had intentionally killed her. Tennell’s counsel argued that the State

had not proved its case beyond a reasonable doubt. Defense 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


                                          7
evidence of transdermal absorption through the jeans, or that Tennell had worn

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

      Defense 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 had 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 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 it found that he had

used a deadly weapon to commit the crime. He was 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 the apartment. After

a hearing, the trial court denied the motion for new trial. Tennell appeals.




                                          8
                                     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.

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 questionnaire

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


                                         9
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

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


                                         10
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 pursuant to 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

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 which “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


                                         11
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

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


                                        12
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. 126 S.W.3d at 927.

      The facts of this case are distinguishable from 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 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, 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


                                        13
questionnaire or the statements contained therein. See Munoz, 288 S.W.3d at 58.

We therefore overrule Tennell’s appellate complaint about the admission of

hearsay evidence.

II.   Lesser-included charge instruction

      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,

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


                                        14
instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d 377,

382 (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. The second step of the analysis 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 appellate 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 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.




                                        15
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

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 fails to 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


                                        16
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 (Tex. Crim. App. 2014) (holding appellant

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 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




                                         17
171. Accordingly, we overrule Tennell’s challenge to the jury instructions. See

TEX. R. APP. P. 38.1(i).

III.   Denial of motion for new trial

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

On the morning after he was sentenced, the prosecution informed him that Harris

stated that when she left Hailey with him, he was wearing the same jeans that had

been admitted into evidence at trial. Tennell filed a motion for new trial asserting

that this information was illegally withheld. 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.

       Prior to trial, Harris had stated that Tennell was wearing jeans on the

morning of the day when Hailey died. The prosecution provided that information

to defense counsel, in discovery responses, almost two years before trial. The State

also produced documents indicating that jeans had been collected from the

apartment and submitted for toxicology testing. Shortly before trial, the jeans were

tested for the presence of PCP, and the positive results were provided to defense

counsel. At a hearing on the motion for new trial, the lead prosecutor testified that

he had not suspected that the jeans in evidence were the same jeans Harris had

referenced in her pretrial statements indicating that Tennell had been wearing jeans


                                         18
on the day Hailey died. The prosecution had not shown the jeans or pictures of the

jeans to Harris prior to trial, and only after sentencing did they learn from Harris

that she had seen Tennell that day in those particular jeans.

      The State offered into evidence a written report, titled “Supplement: 0033,”

which had been prepared by Detective Davis and which 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 Riley

to the doctor’s 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 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 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


                                          19
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.

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

been wearing the jeans, but he told her he could not remember. That lawyer never

attempted to speak to Harris before trial, nor did she send an investigator to speak

with her. The attorney 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 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


                                        20
denied that she had seen Tennell in the jeans, it would destroy the defensive

theory. Both defense lawyers conceded that Detective Davis would have 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 prior to trial

that Tennell’s story about PCP spilling in his 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 clarified that

she had told prosecutors and detectives in the case that Tennell was wearing blue

jeans when she last left him with Hailey, but the prosecution had never shown her

the jeans or pictures of the jeans that had been collected from the apartment. The

first time she saw the 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 that day, and she informed the prosecutors the

following day.


                                         21
      Tennell also offered into evidence notes from a meeting Harris had with

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

three prosecutors indicated that Harris had stated Tennell wore “blue” or “dark

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

      The motion for new trial was denied. 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.

      A.     Brady violation

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

trial because the State withheld exculpatory evidence. He asserts that the

prosecution withheld the information that when Harris last left their 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.


                                           22
      “A prosecutor has the 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

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 state’s obligation to reveal Brady material attaches when the

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

require the prosecution to disclose exculpatory or potentially exculpatory evidence


                                         23
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

defense counsel almost two years before trial. This information included Detective

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

when she last left him alone with Hailey. It 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 prior to 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.

      Tennell disparages the discovery provided to his defense team as a

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

deliberately obscured the information that Harris stated he was wearing jeans

before she left the apartment. The record shows that the State disclosed to

Tennell’s lawyers the very information that he now complains was illegally

withheld. To the extent Tennell complains that the State failed to disclose that


                                          24
Harris saw him wearing the same jeans that tested positive for PCP, he has failed

to show that the State had that particular information before trial.

      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 statement and the 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

required to show that a Brady violation occurred. Further, the State did not have a

duty to investigate or develop Tennell’s defense for him. 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.

      B.     Newly discovered evidence

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

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


                                           25
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 the

following 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).

      Defense 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.

      Counsel was provided 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


                                          26
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 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 defense counsel testified at the hearing

on motion for new trial that this was a strategic decision.

      The trial court reasonably could have determined that through reasonable

diligence, Tennell could have obtained the information that Harris saw him

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

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

discovered evidence.

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.




                                          27
      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

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


                                         28
protections. 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 trials 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

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).


                                         29
                                   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).




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