                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00112-CR

TEVIN SHERARD ELLIOTT,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1543-C2


                           MEMORANDUM OPINION


       Tevin Sherard Elliott was a college football player. He attended a friend’s party

at the clubhouse of an apartment complex. Jasmin Hernandez attended the same party

with some of her friends. She met Elliott for the first time at the party. After socializing

and having a few drinks with her friends, Jasmin went to the bathroom. When she

returned, she could not find her friends. Elliott offered to help her find them and led

her out the back door of the clubhouse to the pool and recreational area of the complex.

Jasmin protested.    Elliott carried Jasmin to a muddy slope where Elliott sexually
assaulted her. After putting their clothes back on, Elliott carried Jasmin to another part

of the recreational area and sexually assaulted her again. Afterwards, Jasmin found her

friends and, crying, told them what happened. She was taken to the hospital where she

gave a statement about what happened and had a sexual assault examination. Elliott

asserted that the sexual conduct was consensual.

         After a jury trial, Elliott was convicted of two counts of sexual assault. See TEX.

PENAL CODE ANN. § 22.011 (West 2011). Because we overrule each of Elliott’s issues on

appeal, the trial court’s judgments are affirmed.

SUFFICIENCY OF INDICTMENT

         In his first issue, Elliott asserts that the indictment was facially insufficient

because it failed to allege with particularity the manner and means for the lack of

consent of the complainant. Specifically, he contends he was not properly advised

which of the 11 ways in which a sexual assault can occur without the victim’s consent.

         Texas law requires the defendant to object to any alleged error in the indictment

before the day of trial and certainly before the jury is empaneled. Teal v. State, 230

S.W.3d 172, 177 (Tex. Crim. App. 2007). The relevant statute provides:

         (b) If the defendant does not object to a defect, error, or irregularity of
         form or substance in an indictment or information before the date on
         which the trial on the merits commences, he waives and forfeits the right
         to object to the defect, error, or irregularity and he may not raise the
         objection on appeal or in any other postconviction proceeding. Nothing in
         this article prohibits a trial court from requiring that an objection to an
         indictment or information be made at an earlier time in compliance with
         Article 28.01 of this code.
Elliott v. State                                                                       Page 2
TEX. CODE CRIM. PROC. art. 1.14 (West 2005).

         Elliott did not object to the sufficiency of the indictment prior to the day of trial.

He raises this issue for the first time on appeal. However, we still need to determine

whether the indictment is constitutionally sufficient before applying the waiver

doctrine set out in the statute. Teal v. State, 230 S.W.3d 172, 180-81 (Tex. Crim. App.

2007). The question to be asked is: Can the district court and the defendant determine,

from the face of the indictment, that the indictment intends to charge a felony or other

offense for which a district court has jurisdiction? Id. at 180. If so, a defendant must

make a pretrial objection to a substantive defect in the information or indictment or

forfeit the right to complain about it on appeal. Smith v. State, 309 S.W.3d 10, 18 (Tex.

Crim. App. 2010).

         Here, Elliott was charged in the indictment with two counts of sexual assault,

both alleging that on April 15, 2012, Elliott “intentionally or knowingly” caused the

penetration of the sexual organ of Jane Doe,1 by Elliott’s sexual organ, without Jane

Doe’s consent. It is clear that the indictment intended to charge Elliott with sexual

assault. Sexual assault is a felony and all of the necessary elements were pled. Pleading

the manner and means of vitiating consent are not necessary elements of sexual assault.

See Moss v. State, No. 07-12-00067-CR, 2013 Tex. App. LEXIS 9715, 9 (Tex. App.—



1 Jane Doe was the pseudonym for the complainant, Jasmin Hernandez, which was used in the
indictment.

Elliott v. State                                                                         Page 3
Amarillo Aug. 2, 2013, pet. ref’d) (not designated for publication). The trial court and

defendant could conclude that the indictment charged a felony and the court had

jurisdiction of that offense. Accordingly, to preserve this issue for appellate review,

Elliott needed to object to the indictment prior to the day of trial. Because he did not,

his complaint on appeal is waived; and his first issue is overruled.

CHALLENGE TO VENIRE MEMBER

         Elliott next contends that the trial court erred in refusing to excuse venire

member 14 for cause due to that venire member’s inability to follow the law.

          A defendant may challenge a potential juror for cause if he is biased or

prejudiced against the defendant or the law on which the State or defendant is entitled

to rely. Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014); Gardner v. State,

306 S.W.3d 274, 295 (Tex. Crim. App. 2009). Elliott does not point to any place in the

record where he made a challenge to venire member 14. And we have not found a

challenge in the record either. Although to establish harm for an erroneous denial of a

challenge for cause, the defendant must show on the record that: (1) he asserted a clear

and specific challenge for cause; (2) he used a peremptory challenge on the complained-

of venire member; (3) his peremptory challenges were exhausted; (4) his request for

additional strikes was denied; and (5) an objectionable juror sat on the jury, see Comeaux,

445 S.W.3d at 749; Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), when no

challenge at all is made to a juror, the issue of whether the juror is challengeable for


Elliott v. State                                                                     Page 4
cause has not been preserved. See TEX. R. APP. P. 33.1. Elliott does not argue that the

trial court should have, sua sponte, excused the venire member. See Warren v. State, 768

S.W.2d 300, 303 (Tex. Crim. App. 1989) (“It is well settled that a trial judge should not

on his own motion excuse a prospective juror for cause unless the juror is absolutely

disqualified from serving on the jury.”).

         Regardless of whether or not the venire member was challengeable for cause,

Elliott did not challenge venire member 14 for cause at all, and his complaint on appeal

is not preserved. Elliott’s second issue is overruled.

PERJURED TESTIMONY

         In his fifth issue, Elliott asserts that his due process rights under the Fourteenth

Amendment to the United States Constitution were violated by the State’s knowing use

of perjured testimony.       Elliott alleges that the State knowingly presented perjured

testimony regarding Jasmin’s level of intoxication the night of the assaults.

         To constitute a violation of due process under Federal precedent, the State must

knowingly use false testimony. Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim.

App. 2011).        There is no requirement that the offending testimony be “criminally

perjurious;” it is sufficient if the witness's testimony gives the trier of fact a false

impression. Id. at 477. The appellant bears the burden of showing that the testimony

used by the State was, in fact, perjured. Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim.

App. 1986).


Elliott v. State                                                                       Page 5
         The knowing use of false testimony violates due process when there is a

"reasonable likelihood" that the false testimony affected the outcome. Id. at 478.                    In

other words, the false testimony must have been material. Id. A finding of materiality

obviates the need to conduct a separate harmless error analysis on direct appeal. Ex

parte Fierro, 934 S.W.2d 370, 373 (Tex. Crim. App. 1996).

Trial Testimony

         Jasmin testified that she socialized at the party and had “maybe two cups” of a

punch with alcohol in it. She stated that she had a shot of vodka at the party as well.

Further, she stated that she had a high tolerance for alcohol and did not think she was

intoxicated at the party. The State qualified her statement by asking if she was so

intoxicated she could not walk. Jasmin replied that she could walk. The officer who

initially responded to the hospital did not think Jasmin was intoxicated.2 The nurse

who performed the sexual assault exam on Jasmin several hours later did not recall

noticing a smell of alcohol on Jasmin. The nurse noted, however, that when she asked

Jasmine if she had anything alcoholic to drink within the last 12 hours, Jasmine replied

she had not.

         On cross-examination, Jasmin stated she did not recall telling the officer to whom

she gave a statement that she had three cups of punch and two shots of vodka. Jasmin

also did not recall telling the nurse that she had not had anything to drink in the last

2This officer was not the officer who took Jasmin’s statement. The officer who took the statement was not
asked whether he thought Jasmin was intoxicated.

Elliott v. State                                                                                  Page 6
twelve hours. She thought she had told the nurse that she had drank an alcoholic

beverage within 12 hours prior to the exam.

Motion for New Trial

         At the hearing on the motion for new trial, one of the prosecutors was called to

testify and was questioned about why the State did not let trial counsel know there was

a 30 minute gap in the apartment complex surveillance video provided to the defense.

The prosecutor explained that she did not notice the gap until it was pointed out in

Elliott’s motion for new trial. She also explained that she did not think the missing

portion, which potentially was of the pool area, was relevant because based on what

Jasmin had told her, it would not have shown either of the sexual assaults. When

confronted with Jasmin’s statement to police that she was carried to the pool area where

she was again sexually assaulted, the prosecutor replied that she read the statement

after talking to Jasmin and did not think it was inconsistent with Jasmin’s allegation

that the second act occurred against a fence. The prosecutor still did not believe the

missing video would show the second act. On re-direct, the prosecutor explained that

what was relevant to her was the totality of the evidence, not just the surveillance video.

When Elliott’s counsel noted that Jasmine had “said a lot of things” in her statement,

the prosecutor responded, “Well, she was also drunk when she wrote that statement.”

Application

         This last statement by the prosecutor is what Elliott relies on to assert that the


Elliott v. State                                                                     Page 7
State knowingly presented perjured testimony. We disagree. Clearly, Jasmin had been

drinking at the party. No one testified otherwise. She had two or three cups of an

alcoholic punch and one or two shots of vodka. That Jasmin thought she was not

intoxicated at the party and the State thought she was “drunk”3 when she wrote a

statement with inconsistencies does not create a false impression of sobriety to the jury.

          Elliott’s fifth issue is overruled.

PRESERVATION OF COMPLAINTS

          By his third issue, Elliott argues the trial court erred in allowing the State to

reopen voir dire at the conclusion of Elliott’s counsel’s voir dire examination. Elliott

cites no authority for the proposition that the State cannot reopen voir dire. Thus, this

issue is improperly briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i);

Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). Regardless, there was no

objection to the State’s action. Accordingly, error, if any, is not preserved. TEX. R. APP.

P. 33.1. Elliott’s third issue is overruled.

          Elliott contends in his fourth issue that the trial court erred in limiting Elliott’s

cross-examination of a witness in violation of Elliott’s Fifth, Sixth, and Fourteenth

Amendment rights. Specifically, Elliott contends he was not permitted to cross-examine

the witness regarding a prior statement she had made. There is nothing in the record

that indicates the trial court would not allow counsel to cross-examine the witness


3   There was no explanation as to what the prosecutor meant by “drunk.”

Elliott v. State                                                                         Page 8
regarding the statement. There were two discussions in chambers and off the record

but we do not know what occurred during those discussions. Further, no offer of proof

was made.          Accordingly, this issue is not preserved, and Elliott’s fourth issue is

overruled. See TEX. R. APP. P. 33.1.

         In issues six, seven, and eight, Elliott asserts the trial court erred in allowing the

rebuttal testimony of three witnesses.         Specifically, he contends that none of the

witnesses’ testimony was sufficient to establish a “modus operandi” for extraneous

offenses pursuant to Rule 404(b) of the Texas Rules of Procedure. However, Elliott did

not object to the testimony of any of the three witnesses. He only objected to the State

questioning Elliott on cross-examination regarding non-consensual sex with each of the

three witnesses.         Elliott does not complain about that testimony on appeal.

Accordingly, Elliott’s complaints about the erroneous admission of the three witnesses’

testimony is not preserved. TEX. R. APP. P. 33.1. His sixth, seventh, and eighth issues

are overruled.

         In his ninth issue, Elliott complains that the trial court erred by allowing the

cross-examination of a defense rebuttal witness regarding a prior bad act of Elliott.

Elliott raised no objection to the question by the State and has preserved nothing for

review. TEX. R. APP. P. 33.1. Elliott’s ninth issue is overruled.

         In his tenth issue, Elliott contends his Sixth Amendment right to confront and

cross-examine witnesses was violated by the admission of a forensic DNA test report


Elliott v. State                                                                         Page 9
through an individual who did not prepare the report. Elliott did not object to the

admission of the evidence; thus his Confrontation Clause argument is waived. See TEX.

R. APP. P. 33.1(a); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (trial

objection on hearsay grounds failed to preserve error on Confrontation Clause

grounds); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (Confrontation

Clause argument waived by failing to object on that basis). Elliott’s tenth issue is

overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

         In his final issue, Elliott argues that he was denied his Sixth Amendment right to

the effective assistance of counsel at trial. Specifically, he contends that the failure to

cross examine Jasmin by the use of her written statement, the failure to exploit a gap in

the surveillance video at the apartment complex, and the decision to put Elliott on the

stand in the face of extraneous offense testimony from three other females alleging

sexually assaultive events, denied Elliott of his right to the effective assistance of

counsel.

         In order to prevail on a claim of ineffective assistance of counsel, Elliott must

meet the two-pronged test established by the United States Supreme Court in Strickland

that (1) counsel's representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.


Elliott v. State                                                                      Page 10
Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must

not find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. In order to

satisfy the first prong, Elliott must prove by a preponderance of the evidence that trial

counsel's performance fell below an objective standard of reasonableness under the

prevailing professional norms. Id. To prove prejudice, Elliott must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

         An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation."           Id.

(quoting Bone, 77 S.W.3d at 833).

         Elliott filed a motion for new trial alleging ineffective assistance of counsel based

on several grounds, including counsel’s failure to exploit the gap in the video

surveillance and, in part, counsel’s decision to have Elliott testify.

         We review a trial judge's denial of a motion for new trial under an abuse of


Elliott v. State                                                                       Page 11
discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014); Salazar

v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). "We do not substitute our judgment

for that of the trial court; rather, we decide whether the trial court's decision was

arbitrary or unreasonable." Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

A trial judge abuses his discretion in denying a motion for new trial when no

reasonable view of the record could support his ruling. Colyer, 428 S.W.3d at 122;

Holden, 201 S.W.3d at 763. We view the evidence in the light most favorable to the trial

judge's ruling and presume that all reasonable factual findings that could have been

made against the losing party were made against that losing party. Colyer, 428 S.W.3d

at 122; Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997).

         At a motion for new trial hearing, the judge alone determines the credibility of

the witnesses. Colyer, 428 S.W.3d at 122; Salazar, 38 S.W.3d at 148. Even if the testimony

is not controverted or subject to cross-examination, the trial judge has discretion to

disbelieve that testimony. Colyer, 428 S.W.3d at 122; Masterson v. State, 155 S.W.3d 167,

171 (Tex. Crim. App. 2005).

Video Gap

         The testimony at the motion for new trial centered on the State failing to notice

and inform Elliott’s trial counsel of the 30 minute “gap” in the surveillance video from

the apartment complex, not as to how trial counsel could have used the “gap” to

Elliott’s benefit. Elliott only argued at the hearing on the motion for new trial, that


Elliott v. State                                                                   Page 12
because Jasmine’s statement indicated she and Elliott had sex in the pool area, the gap

in the video, allegedly of the pool area, would be relevant to whether the sexual

encounter was consensual and that the defense could have argued why was that

portion of the video not there.

         Elliott has the burden to prove that his counsel was ineffective. There was

nothing presented at the hearing on the motion for new trial to suggest that counsel’s

representation fell below an objective standard of reasonableness under the prevailing

professional norms or that there was a reasonable probability that the result of the trial

would have been different but for trial counsel’s failure to expose or exploit the gap in

the video. Although Elliott testified at the hearing that counsel never informed him of

the gap, neither the State nor trial counsel thought the video was very important. The

State did not notice the gap until it was pointed out in Elliott’s motion for new trial. It

did not think the video was very important. By affidavit, trial counsel for Elliott stated

that after viewing the video for trial, he did not find anything to contradict Jasmin’s

testimony or that would be beneficial for the defense.

         Elliott never disputed that he and Jasmine had sex. He disputed whether the

encounter was without consent. Thus, the trial court could have believed trial counsel’s

affidavit and determined the missing portion of the surveillance, would not be

beneficial to the defensive strategy.    Accordingly, the trial court did not abuse its

discretion in denying Elliott’s motion for new trial on this ground for ineffective


Elliott v. State                                                                    Page 13
assistance of counsel.

Decision to Testify

         Trial counsel testified by affidavit that he and Elliott had discussed the pros and

cons of Elliott testifying at trial. They were aware of the extraneous offenses and had

been furnished copies of those offense reports. They knew that if Elliott testified, those

additional allegations would be introduced. They also discussed that the defense of the

case was consent. They had determined the case to be a "she said, he said" situation and

that Elliott would have to testify to tell his version that the sexual acts were consensual.

Trial counsel also testified that Elliott was aware of the dangers and risks of testifying

and also the possible benefits of testifying. It was counsel’s trial strategy that the jury

hear Elliott’s version. Elliott was also aware of his right to remain silent. Counsel and

Elliott had discussed that testifying would be a trial time decision, depending on how

the trial and evidence was going.

         Elliott testified at the hearing on the motion for new trial that he was never

prepared to testify and that counsel “just put me up there.”

         Because the trial court is the sole judge of the credibility of the witnesses, he

could have disbelieved Elliott and believed trial counsel’s testimony. Further, based on

counsel’s affidavit, the trial court could have reasonably determined that the decision to

have Elliott testify was trial strategy. Accordingly, the trial court did not abuse its

discretion in denying Elliott’s motion for new trial on this ground for ineffective


Elliott v. State                                                                     Page 14
assistance of counsel.

Failure to Cross Examine

         Elliott’s other ground for ineffective assistance of counsel raised on appeal, that

counsel failed to cross examine Jasmine with her prior statement, was not raised in the

motion for new trial. Consequently, the record is inadequately developed and cannot

adequately reflect the alleged failings of trial counsel.

Other Grounds

         Elliott does not discuss on appeal the other grounds alleged in his motion for

new trial as evidencing ineffective assistance of counsel. Thus, we conclude the record

is insufficient to establish that counsel’s representation fell below an objective standard

of reasonableness.       And to the extent Elliott argues that due to the other issues

presented in this appeal, his counsel was ineffective, again, the record is inadequately

developed and cannot adequately reflect the alleged failings of trial counsel. Thus, we

cannot say that counsel was ineffective on these grounds.

         Elliott’s eleventh issue is overruled.

CONCLUSION

         Having overruled each issue on appeal, we affirm the trial court’s judgments.




                                             TOM GRAY
                                             Chief Justice



Elliott v. State                                                                     Page 15
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 23, 2015
Do not publish
[CR25]




Elliott v. State                             Page 16
