       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00528-CR


                              Meechaiel Khalil Criner, Appellant

                                                 v.

                                  The State of Texas, Appellee


               FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-DC-18-904027, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Meechaiel Khalil Criner was charged with capital murder. See Tex. Penal Code

§§ 19.02(b)(1), .03. During the trial, Criner sought to suppress evidence pertaining to items seized

during the investigation by the police, but the district court denied the motion to suppress. The

jury found Criner guilty of the charged offense, and the district court imposed a mandatory

sentence of life in prison and rendered its judgment of conviction. See id. § 12.31. Following

his conviction, Criner filed a motion for new trial alleging that he discovered new evidence after

the trial. After convening a hearing, the district court denied the motion for new trial. In four

issues on appeal, Criner contends that the district court erred by denying his motion to suppress,

that mandatory life sentences are unconstitutional, that the district court’s judgment of conviction

contains an error that needs correcting, and that the district court erred by denying his motion for

new trial. We will modify the district court’s judgment of conviction and affirm the judgment

as modified.
                                         BACKGROUND

               Criner was charged with the capital murder of H.W. for allegedly strangling her

with a ligature while he was in the course of committing or attempting to commit aggravated

sexual assault, kidnapping, or robbery. The following summary comes from the testimony and

other evidence presented at the trial.

               The offense allegedly occurred at night on April 3, 2016, on the campus of the

University of Texas at Austin. H.W. was a student at the University. On the night in question,

H.W. called her on-campus roommate at around 9:30 p.m. to tell her roommate that she was

walking back to the dorm from the University’s dance production lab. At that time, H.W. was

wearing a black turtleneck, black pants or leggings, and black Doc Marten boots, and she was

carrying a blue duffle bag that had red handles. The bag contained, among other items, a sweater,

a book entitled “All the Light We Cannot See,” and a silver Apple laptop. On prior occasions

when H.W. walked home from the lab, she took a path along Waller Creek that ran behind the

Alumni Center for the University. On her way to the dorm, H.W. was texting with a friend but

stopped responding to the texts from her friend around 9:40 p.m. H.W. did not return to her

dorm room that night. The following morning, H.W.’s roommate and friends reported her missing

to the University’s Police Department.

               During their investigation, the police reviewed security footage of a loading dock

from a building near Waller Creek. The footage from April 3 showed an African American man

riding a bicycle down the loading dock at 9:20 p.m. The man was wearing an orange bandana

around his neck, glasses, a backpack, and a dark jacket with patches on the shoulders. The bike

was later described as a red bike with a woman’s frame that had tape on the handlebars. The

man left the area at 9:21 p.m. without his bike, returned at 9:32, left at 9:33 on his bike, and then

                                                 2
returned again at 9:38. Around that same time, another person who was wearing dark clothing

walked to the area and headed for a path behind the Alumni Center. The other person was

looking at the screen of an electronic device. After noticing the other person, the man got off his

bike, followed the path of the other person, reached underneath his backpack, and pulled out an

object. The man disappeared from view at 9:39 p.m.

                  After reviewing the footage summarized above, police officers searched the

Waller Creek area and found H.W.’s naked body in the creek. She had been placed between two

rocks and covered with branches. There was a strap around her neck, and she had sustained

injuries to her head. An autopsy revealed that the cause of death was strangulation and blunt

force trauma to the head and that H.W. had bruising on her vaginal wall that was consistent with

sexual assault.

                  In addition to finding H.W.’s body, the police found at the scene a claw hammer

with one claw broken off and a pair of prescription glasses. At trial, an optician and an optometrist

testified regarding the glasses. The optician testified that Criner had purchased glasses from her

store, that her store sold the style of frames for the glasses found in the creek, and that the pair of

glasses that she sold to Criner had the same prescription and lens size as the glasses from the

creek. In her testimony, the optician stated that she could not say for certain that glasses

recovered from the creek were Criner’s and that there was a 1.2 centimeter difference in “the

pupillary distance” between the recovered glasses and Criner’s prescription, but she also

explained that it was normal for glasses to differ from the original prescription due to events that

occur in production. The optometrist who wrote the prescription for Criner testified that the

pupillary distance for the recovered glasses was consistent with that of a child and that a

difference of 1.2 centimeters would be noticeable and could lead to double vision and dizziness,

                                                  3
but he also explained that inaccuracies in pupillary distance can be caused by imprecise

measurements, errors that occur in the production of the glasses, or bending in the frame.

Moreover, the optometrist testified that the prescription for the recovered glasses was consistent

under accepted standards of variation with the prescription that he wrote for Criner and that

Criner had a “rare” prescription.

               After H.W.’s body was found, two employees for the University were tasked with

reviewing additional surveillance footage from other security cameras on the campus to look for

evidence regarding the offense. The man seen on the loading dock security footage was not seen

on surveillance footage again until 11:24 p.m. when he was seen at the north end of the

University’s football stadium. At that time, the man was carrying a blue bag that he did not have

earlier, was no longer wearing glasses, and had retrieved his bike.

               As will be detailed further below, the police eventually identified Criner as a

suspect, and extensive evidence was presented at trial regarding his location before and after the

offense in question. Late in March, Criner left his foster home in Killeen, Texas, and headed to

Austin, Texas. Before leaving, Criner had been given eyeglasses. Shortly after he arrived in

Austin, Criner began hanging around the University and neighboring areas. On March 30, a

member of an athletic team for the University found some property inside what should have been

the team’s empty storage room in the football stadium, and the individual took photos of the

items in the storage room, including ropes, straps, a claw hammer with one claw missing, and a

lime green shirt. After the individual informed the University that there might be someone living

in the storage room, a representative for the University went to the storage room, found Criner,

and told him to gather his property and leave. When the representative returned later, Criner and

all his belongings were gone.

                                                 4
                On the day after the offense in question, firefighters received a call regarding a

possible fire at a vacant building that was being remodeled in the Medical Arts Square near

the University. When the firefighters arrived, they found Criner inside the building and also

discovered that he had started a small fire inside. After learning that Criner was a minor and was

homeless, the firefighters and the responding police officers made arrangements to have Criner

stay at LifeWorks, which is a shelter for minors. Although the police officers and firefighters

explained that Criner could take some of the items that he had in the building, they also told him

that he could not take all of the property to the shelter.

                Criner placed several of the items in two of his bags to take with him to the

shelter. One of the bags was a backpack, and the other was a blue duffle bag with red straps.

The firefighters and the police officers gathered up the remainder of the items, placed them

inside a gray trash can, and set the trash can at the bottom of a cement staircase on the outside of

the building that led to a door to the basement of the building. One of the firefighters also

informed Criner that he would take one of the three bicycles inside the building to the firehouse

for safekeeping and asked Criner to select which bike he wanted the firefighters to take. Criner

chose a red bike with a woman’s frame that had tape on the handlebars. After the police officers

and firefighters secured Criner’s belongings, one of the police officers drove Criner to LifeWorks.

                As part of their investigation, the police released some surveillance footage of the

loading dock at the University to the media. When the footage was shown on a local news

station, one of the firefighters who responded to the call at the Medical Arts building and who

interacted with Criner recognized Criner and the bicycle from the footage. After the firefighter

informed his supervisor, his supervisor contacted the police, and police officers subsequently

went to the Medical Arts building and to the LifeWorks shelter.

                                                   5
               While at the Medical Arts building, police officers recovered several items from

inside the building and from inside the gray trash can that firefighters and police officers used to

store some of Criner’s property. Inside the firepit, the police found a piece of rubber appearing

to be part of a boot that had been burned. In addition, the police found inside the building straps

and ropes, including one strap that was described as an “exact match” to the strap that was used

to kill H.W.

               Inside the trash can, the police found straps, a portion of a Doc Marten boot that

had been burned, and a black turtleneck and black pants that were sandy and resembled the

clothes H.W. was last seen wearing. One of the straps appeared to be the same type of strap that

had been used to strangle H.W. The police also found a sweater that had a receipt in the pocket

with H.W.’s name on it. Further, the police recovered the following items that appeared to match

the clothes that the suspect was wearing in the surveillance footage: an orange bandana and a

black jacket with shoulder patches. The jacket was characterized as an “exact match” to the

jacket seen on the surveillance footage. The police also found a lime green shirt. While the items

were being inventoried, a hair was discovered on the lime shirt, and subsequent mitochondrial

DNA testing performed on the hair excluded more than 99% of the population of North America,

including Criner, as potential sources of the hair but could not exclude H.W. and her maternal

relatives. During the trial, Criner made an oral motion to suppress the items recovered from the

trash can, but the district court denied that motion.

               At the LifeWorks shelter, the police searched Criner’s room and found, among

other items, a silver Apple laptop, a blue duffle bag with red straps, a nylon strap that was similar

to the one found wrapped around H.W.’s neck, a backpack, and a copy of “All the Light

We Cannot See.” After Criner was arrested, the remainder of his possessions was placed in the

                                                  6
custody of the Department of Family and Protective Services. The police seized some of those

items later, including a gray calculator with H.W.’s name on it, a pencil bag with her name on it,

Criner’s Nextbook laptop, and several flash drives belonging to Criner.

               During the trial, Manuel Fuentes testified that he performed a forensic extraction

on Criner’s Nextbook laptop and the flash drives. Fuentes explained that during the extraction,

pictures of Criner from March 24, 2016, and March 27, 2016, were recovered showing him

wearing glasses, an orange bandana, and a “yellowish” shirt, and those photos were admitted as

exhibits. In his testimony, Fuentes also described various forensic reports that he ran on Criner’s

laptop and related that the reports showed the following computer activity on the night of the

offense: using the Internet around 8:12 p.m., being turned on or rebooted at 8:26 p.m., “powering

up” at 8:44 p.m., registering a USB device at 9:17 p.m., running various programs at 9:18 p.m.

and 9:33 p.m., being “active” between 8:40 p.m. and 9:33 p.m., and displaying a text document

at 11:54 p.m. Fuentes also testified that if the computer was bouncing around in a backpack, the

computer might report some of the activity listed above.

               Once the State rested and closed, Criner elected to testify. In his testimony,

Criner explained that after he ran away from his foster home in Killeen, he stayed in a hospital

parking garage in Austin for a few days before discovering the storage room at the University.

Further, Criner related that he stayed in the storage room for several days, left two of his bags as

well as his glasses in the storage room when he was asked to leave, and then moved into the

Medical Arts building. Regarding the night in question, Criner testified that he went back to the

hospital parking garage to charge his computer and cell phone, that he returned to the Medical

Arts building before nightfall, that he did not leave the building that night, that he used his

computer that night, and that he had to reboot the computer because it was malfunctioning.

                                                 7
Regarding the morning after the offense occurred, Criner testified that he went through the

contents of several dumpsters and found a red bike and multiple bags containing various items,

including ropes, clothes, and a laptop. Additionally, Criner denied killing H.W. or ever seeing

her, stated that he did not have a red bike on the day of the offense, discussed losing his hammer

before he was kicked out of the storage room at the University, and explained that the glasses

that the police found at the scene of the crime were not his.

               After considering the evidence presented at trial, the jury found Criner guilty of

capital murder, and the district court imposed a mandatory life sentence with the possibility of

parole. Following his conviction, Criner filed a motion for new trial asserting that he discovered

new evidence pertaining to his Nextbook laptop after the trial concluded. After convening a

hearing on the motion for new trial, the district court denied the motion.

               Criner now appeals his conviction.


                                          DISCUSSION

               In four issues on appeal, Criner argues that the district court erred by denying his

motion to suppress, that his mandatorily imposed sentence is unconstitutional, that the district

court’s judgment contains an error requiring correction, and that the district court erred by

denying his motion for new trial. We will address those claims in the order briefed.


Motion to Suppress

               In his first issue on appeal, Criner asserts that the district court erred when it

denied his oral motion to suppress the items found in the trash can outside the Medical Arts




                                                 8
building.1 See U.S. Const. amend. IV (prohibiting “unreasonable searches and seizures”); Tex.

Code Crim. Proc. art. 38.23 (providing that “[n]o evidence obtained by an officer or other person

in violation of any provisions of the Constitution or laws of the State of Texas, or of the

Constitution or laws of the United States of America, shall be admitted in evidence against the

accused on the trial of any criminal case”).

               Appellate courts review a trial court’s ruling on a motion to suppress for an

abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under

that standard, the record is “viewed in the light most favorable to the trial court’s determination,

and the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of

reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). Appellate courts apply “a

bifurcated standard, giving almost total deference to the historical facts found by the trial court

and analyzing de novo the trial court’s application of the law.” See State v. Cuong Phu Le,

463 S.W.3d 872, 876 (Tex. Crim. App. 2015); see also Arguellez, 409 S.W.3d at 662 (explaining

that appellate courts afford “almost complete deference . . . to [a trial court’s] determination of

historical facts, especially if those are based on an assessment of credibility and demeanor”).

“The same deference is afforded the trial court with respect to its rulings on application of the

law to questions of fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor.” Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010). “When a trial judge makes express findings of fact, an appellate court must

       1
          Criner also sought to suppress evidence pertaining to items found inside the building.
The district court denied that portion of Criner’s motion to suppress as well, and Criner explains
in his appellant’s brief that he is not challenging this ruling by the district court and instead
states that he “is contesting only the search of the trash[]can which was located outside of the
vacant building.”
                                                 9
examine the record in the light most favorable to the ruling and uphold those fact findings so

long as they are supported by the record.” State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App.

2017). “The appellate court then proceeds to a de novo determination of the legal significance of

the facts as found by the trial court—including the determination of whether a specific search or

seizure was reasonable.” Id.

              “Whether a defendant has standing to contest a search and seizure is a question of

law” that appellate courts “review de novo.” Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim.

App. 2006). “To challenge a search, the defendant must have a legally protected right to the

expectation of privacy.” Id. In other words, “a defendant must demonstrate that he personally

has an expectation of privacy in the place searched, and that his expectation is reasonable.”

Minnesota v. Carter, 525 U.S. 83, 88 (1998). The defendant “bears the burden of demonstrating

a legitimate expectation of privacy.” Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App.

2002); see also State v. Elrod, 395 S.W.3d 869, 877 (Tex. App.—Austin 2013, no pet.) (explaining

that “[a] defendant seeking to suppress evidence on the ground that it was obtained in violation

of the Fourth Amendment . . . must show that he personally had a reasonable expectation of

privacy that the government violated”). To establish “standing to challenge the legality of” a

search, the defendant must show “that he had a subjective expectation of privacy in the place

invaded that society is prepared to recognize as reasonable.” Elrod, 395 S.W.3d at 877.

              When deciding if an appellant has demonstrated an expectation of privacy that is

objectively reasonable, reviewing courts examine the totality of the circumstances that

surrounded the search, including consideration of the following: whether the defendant’s “claim

of privacy is consistent with historical notions of privacy” and whether he “had a property or

possessory interest in the place invaded,” “was legitimately in the place invaded,” “had complete

                                               10
dominion or control and the right to exclude others,” “took normal precautions customarily taken

by those seeking privacy” before the intrusion, and “put the place to some private use.” Id. Those

factors are “not exhaustive, . . . and none is dispositve of a particular assertion of privacy.”

Granados, 85 S.W.3d at 223.

               Before the district court made its ruling, the State called several firefighters and

police officers to the stand who went to the Medical Arts building either in response to the 911

call about a potential fire or later as part of the investigation into the death of H.W. One of the

firefighters who responded to the 911 call testified that the Medical Arts building was under

construction and had been “demoed inside,” that Criner was the only occupant when the

firefighter arrived, and that Criner related that he was a minor and homeless. Another firefighter

who responded to the call testified that there was a couch, a table, and other items in the

otherwise vacant building. In his testimony, the firefighter also related that he and others “were

packing up [Criner’s] belongings” to help get him out of the building, that there were too many

items for Criner to take to the shelter, and that the firefighter stored some of the belongings in a

gray trash can and placed the trash can at the bottom of an exterior staircase because that was

an “out-of-the-way” location. When discussing why he stored the items there, the firefighter

explained that he wanted to give Criner the opportunity to retrieve the items later and to conceal

the items from people passing by. However, the firefighter also stated that the trash can was

accessible to anyone who walked by, that the stairs were not blocked, that the stairwell was an

open space, and that the stairs did not have a gate. Two of the policers officers who responded to

the 911 call testified that Criner did not have permission to be there and that the owner of the

Medical Arts building wanted Criner to leave. One of the officers also explained that it was the



                                                11
intent of the police officers and the firefighters that Criner be able to come back to collect the

items that were placed outside in the trash can.

               Finally, the police officer who went to the Medical Arts building as part of the

investigation in this case testified that he did not have a search warrant, that the trash can at the

bottom of the stairs did not appear to have been tampered with, that the trash can was not visible

from the street, that he saw the trash can “rather easily” when he approached the front door of the

building, and that anyone walking past the front door or between the building and a neighboring

building could have seen the trash can. In addition, the officer explained that he searched the

trash can for evidence relating to the death of H.W. and seized multiple items.

               After considering the testimony above and the parties’ arguments, the district

court denied the motion to suppress. Following trial, the district court issued findings of fact and

conclusions of law pertaining to its ruling. Specifically, the court made, among others, the

following findings:


       •   [Criner] was a homeless juvenile.

       •   [The owner] asked that Criner be removed from the building.

       •   The officers informed Criner that he would have to leave.

       •   [Criner] was allowed to select items to take to Lifeworks and was permitted to store
           the remainder of his belongings in a large gray plastic trash can.

       •   The trash[]can was placed at the bottom of an exterior stairwell leading to the
           basement of the building . . . to make it possible for Criner to return to the location
           and recover the property.

       •   The location at the bottom of the stairwell was selected to shield the trash[]can from
           view.

       •   [The police] searched . . . the trash[]can.


                                                   12
       •   A number of items of potential evidence were seized.

       •   At no time did the officers seek or receive a search warrant.


               Those findings are supported by the record as summarized above. In addition to

those findings, the district court made, among others, the following conclusions of law:


       •   By walking down the stairwell . . . for the purpose of examining the contents of the
           trash[]can, [the police] trespassed the curtilage of the property.

       •   Because there is no applicable exception to the warrant requirement, the evidence
           should be suppressed if Criner has established standing regarding the trash[]can.

       •   The evidence indicates the trash[]can was in a location accessible to the public.

       •   Criner had no ownership or possessory interest in the realty.

       •   [Criner] had no control over the area and no ability or authority to exclude others.

       •   While Criner had taken some steps to [e]nsure the privacy of the trash[]can, those
           steps were minimal.

       •   Criner’s claim is not consistent with historical claims of privacy.

       •   Criner has failed to establish standing [under the Fourth Amendment].


               On appeal, Criner contends that the district court erred when it denied his motion

to suppress the evidence pertaining to the items in the trash can. When challenging the district

court’s ruling, Criner points to the portions of the district court’s conclusions of law in which the

court determined that the search of the trash can and the seizure of the items inside violated the

Fourth Amendment because the police trespassed on the curtilage of the property before seizing

the items without a warrant. Further, Criner contends that the district court correctly determined

that because the evidence was obtained in violation of the Fourth Amendment, the evidence



                                                 13
should not be admitted under article 38.23 of the Code of Criminal Procedure if he had standing

to challenge the search and seizure. See Tex. Code Crim. Proc. art. 38.23.

               However, Criner argues that the district court’s ultimate decision to deny the

motion to suppress on the ground that he lacked standing to contest the search and seizure was

erroneous and asserts that he had standing because he had “a reasonable expectation of privacy

in the trash[]can.” Additionally, although Criner recognizes in his brief that the items were

found in a trash can and that individuals who abandon their property do not have standing to

contest the reasonableness of a search and seizure of the abandoned property, see Swearingen v.

State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003), he urges that he did not abandon his property

because he did not voluntarily relinquish his interest in his property and instead left the items

behind at the directives of the firefighters and police officers who responded to the Medical Arts

building, cf. Matthews v. State, 431 S.W.3d 596, 609 (Tex. Crim. App. 2014) (explaining that

“[a]bandonment is not voluntary if it is the product of police misconduct”). As support for his

arguments, Criner points to portions of the testimony from the firefighters and police officers set

out earlier indicating that they stored his property in a trash can with the intent to allow him to

claim the items later and that they tried to conceal the items by placing the trash can at the

bottom of the outside stairwell. For these reasons, Criner insists that he did not abandon the

property, that he had a reasonable expectation of privacy, that the warrantless search of the trash

can violated his Fourth Amendment rights, and that the evidence should have been excluded

under article 38.23 of the Code of Criminal Procedure.2


       2
          At the conclusion of his first issue on appeal, Criner asserts that the warrantless search
also violated his rights under section 9 of article I of the Texas Constitution. See Tex. Const. art. I,
§ 9. However, it appears from our review of the record that Criner did not present any argument
regarding the Texas Constitution to the district court when arguing that the evidence regarding
                                                  14
               As set out above, several firefighters and police officers testified that there was

furniture, a firepit, and other personal belongings located inside the Medical Arts building even

though it was being renovated. Further, the firefighters and police officers stated that when

Criner was told to leave and to gather the items that he wanted to take with him, efforts were

made to secure the remainder of his belongings from public view and to allow him the

opportunity to retrieve those items later. In light of this testimony and the district court’s findings,

the district court reasonably determined that there was some evidence of a subjective expectation

of privacy because Criner had taken “minimal” steps to ensure the privacy of his items, and the

district court could have also reasonably determined that Criner had used the building and

surrounding property for private use.

               However, the firefighters and police officers also testified that Criner was

discovered in a vacant building that was under construction, that Criner admitted that he was

homeless, and that the owner of the property wanted Criner to leave and had not given him



items seized from the Medical Arts building should be suppressed. See Tex. R. App. P. 33.1(a)
(stating that to preserve error for appeal, record must show that complaint was made to trial court
and that trial court ruled on request or refused to rule and that “complaining party objected to the
refusal”); Rothstein v. State, 267 S.W.3d 366, 373-74 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d) (determining that defendant did not preserve issue for appeal where his argument did
not comport with objection raised in motion to suppress or at suppression hearing). In any event,
Criner does not assert on appeal that the Texas Constitution provides any greater protection than
the Fourth Amendment in this context or requires a lesser showing to establish standing. Cf. Garza
v. State, 137 S.W.3d 878, 884, 885 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (noting that
Fourth Amendment and section 9 of article I of the Texas Constitution both protect individuals
from unreasonable searches and seizures and that, in general, Texas provision “does not offer
greater protection against unreasonable searches and seizures than does the Fourth Amendment”);
State v. Hancock, Nos. 03-98-00634-CR, -00672-CR, -00697-CR, 2000 WL 64061, at *4 (Tex.
App.—Austin Jan. 27, 2000, no pet.) (op., not designated for publication) (noting that discussion
on standing under Fourth Amendment “is equally applicable to a claim under article I, section 9
of the Texas Constitution”). Accordingly, we limit our analysis to Criner’s arguments regarding
the Fourth Amendment and article 38.23 of the Code of Criminal Procedure that Criner presented
to the district court and that he relies on in the remainder of his appellate briefing on this issue.
                                                  15
permission to be there. In light of the testimony given at trial and the district court’s findings,

the district court reasonably determined that Criner had no ownership or possessory interest in

the building and the property surrounding the building, that he had no ability to exclude others

from or exert control over the property, and that his standing claims were not consistent

with historical principles of privacy, and the district court could have also reasonably concluded

that Criner was not legitimately on the property that was searched. See State v. Beckman,

No. 04-12-00405-CR, 2013 WL 2445039, at *2 (Tex. App.—San Antonio June 5, 2013, no pet.)

(mem. op., not designated for publication) (explaining that “a trespasser generally does not have

a reasonable expectation of privacy on property upon which he has trespassed, and therefore

lacks standing to challenge the legality of governmental search or seizure thereon”); Welch v.

State, No. 03-99-00388-CR, 2000 WL 45546, at *2 (Tex. App.—Austin Jan. 21, 2000, no pet.)

(op., not designated for publication) (noting that “a citizen can have no reasonable expectation of

privacy and Fourth Amendment protection on property where he is a trespasser”); Douglas v.

State, 695 S.W.2d 817, 819, 820 (Tex. App.—Waco 1985, pet. ref’d) (determining that defendant

could not complain regarding warrantless search and seizure of items found in vacant home

where defendant was staying “because the evidence showed that [the defendant] was a trespasser

on the premises where the search and seizure occurred”).

               Based on the preceding, the district court did not abuse its discretion by

concluding that Criner did not have standing to challenge the search and seizure under the Fourth

Amendment because he did not have an objectively reasonable expectation of privacy. See Hollis

v. State, 219 S.W.3d 446, 457, 458 (Tex. App.—Austin 2007, no pet.) (explaining that “[a]n

accused lacks standing to challenge the admission of evidence obtained by searching an area in

which he or she does not have a legitimate expectation of privacy” and determining that accused

                                                16
did not have standing to challenge search of dance hall owned by another party); Granados,

85 S.W.3d at 226 (determining that although defendant kept “his belongings in the apartment,”

established “phone service in his name,” took normal precautions to protect property by locking

door, and “put the place to some private use,” he did not have reasonable expectation of privacy

and did not have standing to challenge search of apartment because he “had no other property or

possessory interest in the apartment,” “because he had been asked to leave,” because “he was not

legitimately in the apartment when the search occurred,” because he did not have dominion over

the apartment with the right to exclude others,” and because “his claim is not consistent with

historical notions of privacy”). Because Criner’s appellate arguments regarding article 38.23 of

the Code of Criminal Procedure are premised on his ability to establish a Fourth Amendment

violation, we must also conclude that the district court did not abuse its discretion by determining

that evidence pertaining to the items taken from the trash can did not need to be excluded under

article 38.23. See Tex. Code Crim. Proc. art. 38.23; see also State v. Sepeda, 349 S.W.3d 713,

714, 717 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (explaining that defendant “failed to

establish any state or federal constitution[al] privacy interest” in parking garage that was

searched by police and did not meet burden of showing standing to object to search and that

“article 38.23(a) does not confer third-party standing to persons accused of crimes, such that they

may complain about the receipt of evidence that was obtained by violation of the rights of

others”); Watson v. State, 10 S.W.3d 782, 784 (Tex. App.—Austin 2000, no pet.) (concluding

that defendant “lacks standing to complain that the evidence against him was unlawfully

obtained” under article 38.23 when police “did not violate appellant’s rights”).3


       3
         When making its findings and conclusions, the district court stated that Criner argued
that the evidence should have been suppressed because the police violated a statute by
                                                17
               For all of these reasons, we overrule Criner’s first issue on appeal.


Constitutionality of Mandatory Sentence

               In his second issue on appeal, Criner challenges the constitutionality of the

statutory scheme imposing a mandatory punishment for juvenile offenders who have committed

a capital felony. Subsection 12.31(a) sets out the punishment options for an individual “adjudged

guilty of a capital murder in a case in which the state does not seek the death penalty” and

explains that the punishment options are as follows:


       (1) life, if the individual committed the offense when younger than 18 years of
       age; or

       (2) life without parole, if the individual committed the offense when 18 years of
       age or older.


trespassing when the seizure occurred but concluded that Criner did not have standing to pursue
that challenge because his rights were not violated by the trespass. On appeal, Criner presumably
summarizes that portion of the district court’s order by briefly stating, in his words, that “when
the detective walked down the stairwell for the purpose of examining the contents of the
trash[]can, he trespassed on the curtilage of the property and then searched the trash[]can and
seized the contents of the trash[]can without a warrant” and that “[t]he trial court found that this
too was a violation of the Fourth Amendment and the relevant portions of Texas law.” However,
Criner does not further address the district court’s determination that the police trespassed onto
the property, argue in light of this alleged trespass that the district court should have excluded the
evidence under article 38.23 of the Code of Criminal Procedure because the evidence was
obtained in violation of a statute, or address whether he would have standing to challenge the
search and seizure on that basis. See Tex. Code Crim. Proc. art. 38.23. On the contrary, the
analysis portion of this issue addresses whether Criner had standing to challenge the search of
the trash can and seizure of the property under the Fourth Amendment and whether he
abandoned the property at issue, and Criner only mentions article 38.23 once in the argument
section of this issue in the concluding paragraph and immediately after asserting that the
warrantless search and seizure at issue violated the Fourth Amendment. Accordingly, we do not
address the district court’s determinations regarding whether the police violated a statute by
allegedly trespassing onto the property and whether Criner had standing to assert that the
evidence should have been excluded under article 38.23 due to the alleged trespass. See Tex. R.
App. P. 38.1(i); see also Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (deciding
that defendant did not have standing under article 38.23 “to complain about the seizure of the”
evidence because property was not obtained “in violation of [the defendant]’s rights”).
                                                 18
Tex. Penal Code § 12.31(a). Accordingly, for juvenile offenders, the Penal Code allows for the

possibility of parole, see id., and subsection 508.145(b) of the Government Code states that

juvenile inmates serving a life sentence for a capital murder are “not eligible for release on

parole until the actual calendar time the inmate has served, without consideration of good

conduct time, equals 40 calendar years,” Tex. Gov’t Code § 508.145(b). In light of those statutory

provisions, Criner argues that “an automatic sentence of life with the possibility of parole after

40 years imprisonment for a juvenile offender convicted of capital murder violates the Eighth

Amendment of the United States Constitution,” which prohibits the imposition of “cruel and

unusual punishments,” see U.S. Const. amend. VIII. When presenting this issue on appeal, Criner

contends that the statutory scheme is facially unconstitutional, but he also seems to argue that the

statutory scheme is unconstitutional as it was applied to him because the statutory scheme did

not allow for the consideration of the mitigating evidence that he presented regarding his

“multiple and severe mental health issues” and, accordingly, because it did not allow the district

court to conduct “an individualized sentencing hearing.”4

               A determination regarding whether a statute is facially unconstitutional is a

question of law subject to de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App.

       4
          In its appellee’s brief, the State asserts that Criner did not preserve his constitutional
complaints because he “did not challenge the constitutionality of the sentencing scheme at
sentencing[] or in a motion for new trial.” Although the State recognizes that Criner challenged
the constitutionality of the punishment scheme in a motion filed before he was convicted, the
State contends that this was insufficient to preserve the issue because “the constitutionality of”
his statutorily-imposed punishment was a hypothetical issue until he was convicted. We disagree.
In his motion, Criner requested that the district court conduct an individualized sentencing
hearing if he was convicted, summarized relevant case law, and argued that the automatic
sentencing scheme under which he would be sentenced violated the Eighth Amendment under
the analysis from that case law. After reviewing the motion, the district court ruled on the motion
by denying it. Accordingly, we conclude that Criner preserved his complaint for appellate
consideration. See Tex. R. App. P. 33.1(a) (setting out procedure for preserving complaint for
appellate review).
                                                19
2013). A facial challenge is essentially “a claim that ‘the statute, by its terms, always operates

unconstitutionally.’” Lebo v. State, 474 S.W.3d 402, 405 (Tex. App.—San Antonio 2015, pet.

ref’d) (quoting Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006)). When

assessing a statute’s constitutionality, reviewing courts “presume that the statute is valid and that

the legislature has not acted unreasonably or arbitrarily” when enacting the statute. Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Moreover, the party presenting the statutory

challenge has the burden of establishing that the statute is unconstitutional. Id. For as-applied

challenges, appellate courts review the constitutionality of a criminal statute under a de novo

standard of review. Modarresi v. State, 488 S.W.3d 455, 465 (Tex. App.—Houston [14th Dist.]

2016, no pet.) (setting out standard for as-applied challenge). When presenting an as-applied

challenge, a defendant “concedes the general constitutionality of the statute but asserts it is

unconstitutional as applied to her particular facts and circumstances.” Id. “The burden rests

on appellant to establish the statute’s unconstitutionality as applied to him.” Eugene v. State,

528 S.W.3d 245, 249 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

               As support for his arguments that the statutory scheme is unconstitutional, Criner

refers to an opinion by the Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012). In

Miller, the Supreme Court determined “that mandatory life without parole for those under the

age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and

unusual punishments.’” Id. at 465 (emphasis added). Further, the Supreme Court explained that

statutory schemes imposing life imprisonment without the possibility of parole prevent “those

meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity

for change,’” id. (quoting Graham v. Florida, 560 U.S. 48, 68, 74 (2010)), and pose “too great a

risk of disproportionate punishment” “[b]y making youth (and all that accompanies it) irrelevant

                                                 20
to imposition of that harshest prison sentence,” id. at 479; see also id. at 477 (noting that hallmark

features of youth include “immaturity, impetuosity, and failure to appreciate risks and

consequences”). Moreover, the Supreme Court explained that these types of punishment schemes

do not allow consideration of the defendant’s “family and home environment . . . no matter how

brutal or dysfunctional,” of “the circumstances of the homicide offense,” or of “the possibility of

rehabilitation even when the circumstances most suggest it.” Id. at 477-78.

               Although the Supreme Court concluded that statutes that automatically assess a

juvenile’s sentence at life without the possibility of parole are unconstitutional, the Supreme

Court has not made a similar determination regarding a statutory scheme like the one at issue

here, which involves the imposition of a mandatory life sentence but with the possibility of

parole. See Tex. Penal Code § 12.31(a); Tex. Gov’t Code § 508.145(b). However, the Court of

Criminal Appeals has considered whether the current Texas statutory scheme is constitutional

under Miller. See Lewis v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014). In Lewis, the Court

of Criminal Appeals explained that the holding from Miller “is narrow” and “does not forbid

mandatory sentencing schemes” like the one in Texas, which leaves the possibility of parole and

“a route for juvenile offenders to prove that they have changed” while serving a sentence “that

the Legislature has deemed appropriate in light of the fact that the juvenile took someone’s life

under specified circumstances.” Id. at 863 (citing Tex. Penal Code § 19.03(a)). Similarly, the

Court of Criminal Appeals explained that the analysis from Miller does not require that “all

juvenile offenders” be given “individualized sentencing” and only “requires an individualized

hearing . . . when a juvenile can be sentenced to life without the possibility of parole.” Id.; see

also Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. App. 2014) (concluding that defendant



                                                 21
was “not entitled to an individualized sentencing hearing” under Miller and was “only entitled to

have his sentence reformed from life without parole to life with the possibility of parole”).

               Following Miller, several of the Texas intermediate courts of appeals, including

this one, have rejected both facial and as-applied challenges to the statutory scheme imposing

mandatory sentences of life with the possibility of parole for juvenile offenders convicted of

capital murder. See McCardle v. State, 550 S.W.3d 265, 266, 269 (Tex. App.—Houston [14th

Dist.] 2018, pet. ref’d) (concluding that juvenile defendant who was sentenced to life with

possibility of parole “was not entitled to an individualized punishment hearing under the

Eighth Amendment or Miller”); Guzman v. State, 539 S.W.3d 394, 402-06 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d) (rejecting facial challenge to subsection 12.31(a)(1) of Penal Code

and subsection 508.145(b) of Government Code); Matthews v. State, 513 S.W.3d 45, 61 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d) (overruling defendant’s appellate issues asserting

that subsection 12.31(a)(1) “is unconstitutional both facially and as applied to him”); Maxwell v.

State, No. 03-14-00586-CR, 2016 WL 4177233, at *2-3 (Tex. App.—Austin Aug. 3, 2016, no

pet.) (mem. op., not designated for publication) (relying on Miller and Lewis when overruling

defendant’s claim that his sentence violated Eighth Amendment because he was not given

individualized punishment hearing and further rejecting claim that “life imprisonment with the

possibility of parole amounts to a ‘de facto life sentence’” because rationale from “Miller did not

require that parole be ‘probable,’” only that it “be ‘possible’”).5


       5
          In his brief, Criner refers to various cases from other states as support for his assertion
that the analysis from Miller should compel a conclusion that an automatic sentence of life with
the possibility of parole violates the Eighth Amendment. See, e.g., Bear Cloud v. State, 334 P.3d
132, 141, 142 (Wyo. 2014) (noting that “a juvenile offender sentenced to a lengthy term-of-years
sentence will not have” meaningful opportunity to be released and holding that Miller requires
“sentencing courts to provide an individualized sentencing hearing” where “the aggregate
                                                  22
                In light of the prior precedent from the Court of Criminal Appeals and from this

Court and of the guiding authority from other Texas intermediate courts of appeals addressing

claims like those brought here, we must reject Criner’s constitutional challenges to the

punishment scheme under which he was sentenced and overrule his second issue on appeal. See

McCardle, 550 S.W.3d at 269 (explaining that appellate courts are “bound in criminal cases to

follow decisions of the Court of Criminal Appeals”).


Clerical Error

                In his third issue on appeal, Criner argues that although his sentence was

automatically assessed under subsection 12.31(a)(1), which requires the imposition of life

imprisonment with the possibility of parole, see Tex. Penal Code § 12.31(a)(1), the district

court’s judgment of conviction does not specify “that he will be someday eligible for parole.”

Accordingly, Criner requests that this Court reform the district court’s judgment. In its appellee’s

brief, the State asserts that it “does not oppose reformation of the trial court’s judgment to state that

[Criner]’s punishment is life with the possibility of parole” because the “record unambiguously

reflects that [Criner] was seventeen at the time of the offense” and “would be sentenced to life

. . . with the possibility of parole” if convicted.



sentences result in the functional equivalent of life without parole”); Jackson v. Norris,
426 S.W.3d 906, 910 (Ark. 2013) (determining that reforming sentence to life with possibility of
parole “would not allow for consideration of Miller evidence”); State v. Null, 836 N.W.2d 41, 72
(Iowa 2013) (concluding “that Miller’s principles are fully applicable to a lengthy term-of-years
sentence”). However, those cases did not address the statutory scheme at issue here, and as set
out above, the Court of Criminal Appeals has rejected the idea of expanding Miller beyond
the context of a juvenile sentenced to life without the possibility of parole. See Lewis v. State,
428 S.W.3d 860, 863 (Tex. Crim. App. 2014). “When the Court of Criminal Appeals has
deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its
interpretation under the dictates of vertical stare decisis.” Mason v. State, 416 S.W.3d 720, 728
n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
                                                      23
               This Court has the authority to modify incorrect judgments when it has the

information necessary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27-28 (Tex. Crim. App. 1993). In fact, “[a]ppellate courts have the power to reform whatever

the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to

correct the judgment appears in the record.” Morris v. State, 496 S.W.3d 833, 836 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d)). Accordingly, we sustain Criner’s third issue and modify the

district court’s judgment of conviction to reflect that he was sentenced to “life with the

possibility of parole.”


Motion for New Trial

               In his final issue on appeal, Criner asserts that the district court erred by denying

his motion for new trial alleging that he discovered new evidence after trial. 6

               A trial court’s denial of a motion for new trial is reviewed under an abuse-of-

discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded

by rule on other grounds as stated by State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim.

App. 2007). When performing its review, an appellate court views the evidence in the light most

favorable to the trial court’s ruling, Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d), and presumes “that all reasonable factual findings that could have

been made against the losing party were made against the losing party,” Colyer v. State,

428 S.W.3d 117, 122 (Tex. Crim. App. 2014). “At a motion for new trial hearing, the judge


       6
        In his motion for new trial, Criner alleged other grounds in addition to the one discussed
above, but Criner abandoned those additional claims during the hearing on the motion for new
trial.
                                                 24
alone determines the credibility of the witnesses.” Id. “Even if the testimony is not controverted

or subject to cross-examination, the trial judge has discretion to disbelieve that testimony.” Id.

                Article 40.001 of the Code of Criminal Procedure states that “[a] new trial shall

be granted an accused where material evidence favorable to the accused has been discovered

since trial.”   Tex. Code Crim. Proc. art. 40.001.       Newly-discovered evidence satisfies the

requirements of the statute if “(1) the newly discovered evidence was unknown or unavailable to

the movant at the time of his trial; (2) the movant’s failure to discover or obtain the evidence was

not due to lack of diligence; (3) the new evidence is admissible and is not merely cumulative,

corroborative, collateral, or impeaching; and, (4) the new evidence is probably true and will

probably bring about a different result on another trial.” Keeter v. State, 74 S.W.3d 31, 36-37

(Tex. Crim. App. 2002); see Bautista v. State, 474 S.W.3d 770, 776 (Tex. App.—Houston [14th

Dist.] 2014, pet. ref’d). “Further, ‘[m]otions for new trial on grounds of newly discovered

evidence are not favored by the courts and are viewed with great caution.’” Folau v. State,

No. 02-18-00127-CR, 2019 WL 2455613, at *1 (Tex. App.—Fort Worth June 13, 2019, pet.

ref’d) (mem. op., not designated for publication) (quoting Drew v. State, 743 S.W.2d 207, 225

(Tex. Crim. App. 1987)). “A failure by defendant to establish any of the essential requirements

warrants the trial court’s denial of a new trial.” Shafer v. State, 82 S.W.3d 553, 556 (Tex.

App.—San Antonio 2002, pet. ref’d).

                During the hearing on the motion for new trial, Criner called Matthew Danner as

a witness to testify regarding a forensic data recovery that he performed on Criner’s Nextbook

laptop computer after the trial. In his testimony, Danner explained that he was able to analyze

the actual chip from Criner’s computer, that he was able to look at the event logs for the day in

question, and that there were event logs missing from the report that Fuentes prepared when he

                                                 25
examined the chip for the State and that served as the basis for his testimony. Regarding the

results of his examination, Danner related that someone logged into the computer around 7:15

p.m., that the individual used the Internet after logging in, that the last “web history item was . . .

[at] 7:41 p.m.,” that the computer started “having issues” around 7:44 p.m., that the computer

entered “a reboot loop” in which “it rebooted three or four times,” that there was “a power button

press” that occurred four times between “8:45 p.m. and 8:46 p.m.,” and that the power button

presses did not appear in the report prepared by Fuentes. Further, Danner explained that there

was no event log specifying that the lid had been closed at the times that the power button had

been pressed, meaning that the laptop computer was open at those times. Next, Danner reported

that the last power button press took the computer out of connected standby, that the computer

stayed out of connected standby until 9:33 p.m., and that the computer was on with the lid open

between 7:15 p.m. and 9:33 p.m. Additionally, Danner testified that a nonhuman object could

have triggered the power button and created the event logs even if the computer was in a

backpack provided that the computer was open. Finally, Danner related that there was no user

activity recorded during the relevant time period other than the Internet activity around 7:41 p.m.

and the power button being pressed around 8:45 p.m.

               After considering Danner’s testimony and the arguments by the parties, the

district court determined that the final requirement necessary to entitle Criner to a new trial had

not been met because even if the evidence were true, it would not result in a different outcome in

a new trial.

               On appeal, Criner asserts that the district court abused its discretion by failing to

grant his motion for new trial because all of the necessary requirements were met. As support

for his assertion that the last requirement was satisfied, Criner points to the testimony presented

                                                  26
at trial regarding the times in which the suspect was seen on surveillance footage at the

University. Further, Criner highlights the testimony from Danner indicating that Criner’s computer

was open from 7:15 p.m. to 8:45 p.m. when the power button was pressed multiple times and

that the computer remained open and out of standby mode until 9:33 p.m. In light of the

preceding, Criner urges that Danner’s testimony directly refuted “the State’s contention that

[Criner] was the individual seen on the surveillance videos riding the bike.” More specifically,

Criner asserts that even though Danner testified that the computer was open and on between 7:15

p.m. and 9:33 p.m. and even though he stated that the power button on the computer was pressed

multiple times starting at 8:45 p.m., the suspect was seen walking or riding his bike at various

times between 8:42 p.m. and 9:38 p.m. without any computer being visible. Accordingly, Criner

contends that Danner’s testimony established that Criner was operating his computer during the

relevant times and could not have been the person seen on the various surveillance videos

because the “computer could not have been open and being operated by a human if it was in the

backpack of the person seen riding the bike on the surveillance footage,” and Criner asserts

that Danner’s testimony “would probably bring about a different result if it was presented in a

new trial.”

               Although Danner testified that the power button was pressed four times around

8:45 p.m., he also explained that the button could have been pressed by an object while in a

backpack if the laptop computer was open. Moreover, Danner did not testify that Criner was the

individual who actually pushed the button. Additionally, there was no surveillance footage of

the suspect at the time that the power button was repeatedly pressed, and therefore, testimony

potentially indicating that the button was pressed at that time is not inconsistent with the

evidence indicating that Criner was at the University.

                                                27
               In addition, although Danner testified that there were event logs showing that the

computer was open and on between 7:15 p.m. and 9:33 p.m., Danner did not provide testimony

indicating that there was any active use after 7:41 p.m. other than the power button being pressed

four times around 8:45 p.m. In fact, Danner explained that the computer entered a reboot loop

during a portion of the relevant time. Furthermore, as set out above, Criner elicited testimony

similar to that of Danner’s through his cross-examination of Fuentes in which Fuentes testified

that there was evidence that Criner’s computer was in use at various points on the night in question.

               More importantly, the evidence presented at trial overwhelmingly linked Criner to

the offense in question. For example, the State presented surveillance footage of someone

resembling Criner moving around the University near the location where H.W.’s body was found

and following an individual wearing dark clothing who crossed a bridge behind the Alumni

Center, and a firefighter viewing the footage recognized Criner and the bike from his interaction

with Criner at the Medical Arts building. Moreover, testimony was presented establishing that

H.W. was walking home around the time that the suspect was seen near the Alumni Center, that

she was carrying a blue bag with red straps, that her normal route home took her by the bridge

over Waller Creek next to the Alumni Center, and that she was texting with a friend while

walking home, and surveillance footage showed that the person walking over the bridge was

looking at the screen of an electronic device when the suspect started following the person.

Additionally, surveillance footage from a few hours later shows the suspect in possession of a

blue bag that he did not previously have when he started following the person wearing dark

clothing and walking on a bridge over Waller Creek.

               Further, shortly after the offense, Criner was seen in possession of a bike

resembling the one depicted on the surveillance footage and a blue bag with red straps, and the

                                                 28
eye glasses and the hammer recovered from the scene of the crime resemble those that were

seen in Criner’s possession earlier. In addition, Criner was in possession of clothing and shoes

resembling those worn by H.W. on the night in question, a sweater with her name on a receipt

inside a pocket, other objects belonging to H.W. and bearing her name, and straps similar to the

one used in the offense and found around her neck. Similarly, Criner was seen in possession of

clothing similar to that worn by the suspect on the night in question, and photos taken before the

offense also showed him wearing a lime shirt and an orange bandana. DNA testing performed

on a hair recovered from Criner’s lime shirt excluded as potential contributors 99% of the

population but included H.W. and her maternal family members.

               Accordingly, even if Danner’s testimony is taken as true, his testimony would

probably not bring about a different result on another trial, and we therefore conclude that the

district court did not abuse its discretion by determining that the last requirement for a new trial

was not met and by denying Criner’s motion for new trial on that ground. See Villarreal v. State,

No. 03-06-00033-CR, 2007 WL 700847, at *2 (Tex. App.—Austin Mar. 6, 2007, pet. ref’d)

(mem. op., not designated for publication) (determining that trial court did not abuse its

discretion by denying motion for new trial where it was “highly unlikely that the new evidence

. . . would have probably brought about a different result on another trial”).

               For these reasons, we overrule Criner’s final issue on appeal.


                                         CONCLUSION

               Having sustained Criner’s third issue on appeal, we modify the portion of the

district court’s judgment of conviction setting out his punishment to reflect that he was sentenced




                                                 29
to “life with the possibility of parole.” Having overruled the remainder of Criner’s issues on

appeal, we affirm the district court’s judgment of conviction as modified.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Modified and, as Modified, Affirmed

Filed: November 15, 2019

Do Not Publish




                                               30
