NO. PD-0356-15
IN THE TEXAS COURT OF CRIMINAL APPEALS
NO. 01-13-00775-CR
IN THE COURT OF APPEALS FOR THE
FIRSTSUPREME JUDICIAL DISTRICT OF TEXAS
AT HOUSTON
TRIAL COURT NO. 1329597
IN THE 209TH DISTRICT COURT
OF HARRIS COUNTY TEXAS
RALEIGH JORDAN, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANTS PETITION FOR DISCRETIONARY REVIEW
Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 (832) 603-1330 SBOT 09709800 May 12, 2015 Attorney for Appellant chashinton@sbcglobal.net TABLE OF CONTENTS
Page:
Statement Regarding Oral Argument
Index of Authorities
Statement of the Case
Statement of Procedural History
Question for Review Number One
WHEN THE APPELLATE RECORD CLEARLY REFLECTS THAT THE TRIAL COURT ADMITTED EVIDENCE AS AN EXCEPTION TO TEX. R. CRIM EVID. 404(b), DID THE COURT OF APPEALS ERR IN CONCLUDING THAT APPELLANT WAS NOT ENTITLED TO A LIMITING INSTRUCTION PURSUANT TO TEX. R. CRIM. EVID. 105{a) FOR THE STATED REASON THAT THE EVIDENCE WAS ALSO ADMISSIBLE AS "SAME TRANSACTION CONTEXTUAL EVIDENCE?(RR4:6,8)"
Argument 2
Prayer for Relief 11
Certificate of Service 12
Certificate of Compliance 13
Appendix STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. PROC. 68.4, appellant waives oral argument.
Cases: Page:
Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) 7
Castaldo v. State, 78 S.W.Sd 345 (Tex. Crim. App. 2002) 5
Delgado v. State, 235 S.W.Sd 244 (Tex. Crim. App. 2007) 2
Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999) 4
Jordan v. State, NOS. 01-13-00775-CR & 01-1S-00776-CR (Tex. App. - Houston [1st Dist.] non-published memorandum op. issued March 10, 2015) 2, 4
Lam v. State, 25 S.W.3d 233 (Tex. App. - San Antonio 2000) 6
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) 10
Westbrook v. State, 29 S.W.Sd 103 (Tex. Crim. App, 2000) INDEX OF AUTHORITIES (cont'd)
Rules:
Tex. R. Crim. Evid. 404(b) 1-4, 9-11
Tex. R. Crim. Evid. 105(a) 1, 4, 10-11 TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
On June 26, 2013, a jury found appellant guilty of the state jail felony
offense of tampering with a government record in cause numbers 1329597 and
1329598. The trial court assessed punishment at 2 years confinement in the state
jail in each case; however, the trial court suspended the sentences and placed the
appellant on community supervision for 2 years in both cases. Appellant gave
timely notice of appeal in both cases.
On March 10, 2015, the 1st Court of Appeals issued a non-published
memorandum opinion affirming appellant's convictions. No motion for rehearing
was filed. Appellant now petitions for discretionary review.
WHEN THE APPELLATE RECORD CLEARLY REFLECTS THAT THE TRIAL COURT ADMITTED EVIDENCE AS AN EXCEPTION TO TEX. R. CRIM. EVID. 404(b), DID THE COURT OF APPEALS ERR IN CONCLUDING THAT APPELLANT WAS NOT ENTITLED TO A LIMITING INSTRUCTION PURSUANT TO TEX. R. CRIM. EVID. 105(a) FOR THE STATED REASON THAT THE EVIDENCE WAS ALSO ADMISSIBLE AS "SAME TRANSACTION CONTEXTUAL EVIDENCE? {RR 4:6,8)" 1 ARGUMENT
In overruling appellant's sixth issue wherein he complained of trial
counsel's ineffectiveness in failing to request a limiting instruction after the
admission of extraneous evidence and testimony concerning grand jury
subpoenas, the First Court of Appeals stated that "We have already held that the
grand jury subpoena evidence was "same transaction contextual evidence."
"When evidence is admitted on this basis, Rule 404(b) is not implicated and the
defendant is not entitled to any limiting instruction concerning the use of that
evidence. Id." Jordan v. State, NOS. 01-13-00775-CR & 01-13-00776-CR (Tex. App.
— Houston [1st Dist.] non-published op. issued March 10, 2015) at p. 22.
Appellant concedes that this Court's opinion in Delgado v. State, 235
S.W.3d 244, 253 (Tex. Crim. App. 2007) stands for the principle, as quoted by the
Court of Appeals, that a defendant is not entitled to a limiting instruction when
evidence is admitted on the basis that it is "same transaction contextual
evidence". However, appellant contends that his case is distinguishable from that
of Delgado, id.
In Delgado, id. at 253, appellant never objected to the extraneous offense
evidence. Both the State and the trial judge implicitly concluded that the extraneous offense evidence was "same transaction contextual evidence".
Significantly, the extraneous offense occurred only minutes before the offense for
which the appellant in Delgodo was on trial.
In appellant Jordan's instant appeal, the state, the defense, and. the judge
all agreed that the extraneous offense evidence concerning the grand jury
subpoenas was offered and admitted into evidence by the trial judge, over
appellant's TEX. R. CRIM.. EVID. 404(b) objections, as an exception to 404(b). Prior
to trial, the prosecutor, gave appellant formal notice that she intended to use
extraneous offense evidence concerning appellant's alleged misuse of grand jury
subpoenas (CR I: 15-16). Prior to jury selection, in response to appellant's motion
in limine concerning extraneous offenses, the trial court instructed the
prosecution to approach the bench before eliciting such testimony (RR 2: 7). Prior
to calling her first witness, the prosecutor informed the trial judge that she
intended to elicit testimony concerning the grand jury subpoenas and that she
believed such testimony and evidence would be admissible under TEX. R. CRIM.
EVID. 404(b) in order to establish motive, plan, absence of mistake, as well as the
element of intent (RR 4:6).
The appellate record clearly shows that, during appellant's jury trial, neither the state nor the trial judge directly or impliedly concluded that the extraneous
offense evidence concerning the grand jury subpoenas was being offered or
admitted into evidence as "same transaction contextual evidence". The appellate
record does clearly reflect that the extraneous offense evidence relating to the
grand jury subpoenas was being offered and admitted into evidence as an
exception to 404(b), id. As such, appellant was entitled to a limiting instruction
pursuant to TEX. R. CR1M. EVID. 105(a).
As this Court plainly stated in Jackson v. State, 992 S.W.2d 469, 477 (Tex.
Crim. App. 1999):
"... when an extraneous offense is admitted in the guilt phase of
a trial, failing to give a limiting instruction at the time of admission
may result in the jury drawing inferences about the defendant's
guilt based upon character conformity, a use of the evidence that
was not contemplated by the trial court."
The Court of Appeals in appellant's case correctly stated that "Appellant
argues that "Appellant's attorneys [sic] failure to request a limiting instruction
concerning the extraneous offense evidence and testimony concerning the grand
jury subpoenas resulted in ineffective assistance of counsel." Jordan v. State, NOS. 01-13-00775-CR & 01-13-00776-CR (Tex. App. - Houston [1st Dist.] non-
published memorandum op. issued March 10, 2015) at p. 22. The Court of
Appeals then stated that it agreed with the State's appellate response that the
extraneous offense evidence was "same transaction contextual evidence" and
therefore no limiting instruction was required. Id., at p. 22.
Appellant contends that the Court of Appeals finding that the extraneous
offense evidence was "same transaction contextual evidence" was clearly
erroneous and conflicts with this Court of Criminal Appeal's opinions in Delgado v.
State, supra, at 253; Castaldo v. State, 78 S.W.3d 345 (Tex. Crim. App. 2002); and
Westbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).
In Delgado, supra, at 247, wherein this Court found that the extraneous
offense evidence was "same transaction contextual evidence, "The prosecutor
invoked the concept of "same transaction contextual evidence" without explicitly
using the term. The trial judge inquired whether both events had occurred in the
same time frame, and, when the prosecutor said that they were just minutes
apart, the judge agreed that the evidence was admissible."
In Castaldo, supra, at 352, this Court agreed "that (where) appellant's
alcohol intoxication was in fact same transaction contextual evidence, it follows that no limiting instruction was required." In Castaldo, the appellant was
intoxicated on alcohol at the time of his possession of marijuana.
In Westbrook, supra, at 115, this Court said that "Evidence of the three
additional killings from that evening was same transaction contextual evidence
and, as such, admissible without a limiting instruction, (citations omitted). Such
extraneous offenses are admissible to show the context in which the criminal act
occurred, (citations omitted). This evidence is considered 'res gestae', under the
reasoning that events do not occur in a vacuum, and the jury has the right to hear
what occurred immediately prior to and subsequent to the commission of that act
so that it may realistically evaluate the evidence. Ibid. When this evidence of
extraneous offenses is used to prove a main fact in the case, an instruction
limiting the jury's consideration of this evidence is generally not required."
Appellant suggests that it is noteworthy that, according to the only eyewitness
evidence in the case, all 5 homicide victims appeared to have been shot almost
simultaneously, Id. at 111.
The Court of Appeals decision concerning the concept of "same transaction
contextual evidence" also conflicts with the explanation of the concept of "same
transaction contextual evidence" as set forth in Lam v. State, 25 S.W.Sd 233, 237 (Tex. App. — San Antonio 2000) wherein the Court of Appeals, citing
Buchanan v. State, 911 S.W.2d 11,15 (Tex. Crim. App. 1995), stated that, in order
for extraneous offenses to be admissible under the theory of "same transaction
contextual evidence", "the conduct must be blended or connected to the act for
which the defendant is being tried so that they form an indivisible criminal
transaction, such that full proof of one could not be given without showing the
other."
In the vast majority of cases where appellate courts have approved of the
admissibiiity of extraneous offenses under the guise of "same transaction
contextual evidence", the temporal proximity between the extraneous offense
and the crime for which the appellant was on trial seemed to be a most significant
factor of the appellate analysis.
In appellant Jordan's instant appeal there was no temporal proximity of the
extraneous offense evidence concerning the grand jury subpoenas with the case
in chief offense of tampering with a government document.
State's exhibit #43 (RR 6) entitled "Raleigh Jordan Case Timeline" clearly
shows that, concerning HPD Current Information Report #115482609, the
supplemental entries to the original offense report that were made in the name
7 of Officer Lewis were dated 9/20/2010, 11/3/2010,11/5/2010 and 6/10/2011.
Concerning HPD Current Information Report #023382611, the original report that
was made in the name of Officer Lewis was dated 4-12-2011.
State's exhibit #44 (RR 6), the notary log book of witness Ms. Rebecca
Zepeda documenting the grand jury subpoenas, reflects that she notarized 7
grand jury subpoenas for appellant on July 13, 2011, 3 grand jury subpoenas on
July 14, 2011 and lastly, 4 grand jury subpoena affidavits on July 18, 2011.
Therefore, the extraneous offense evidence which the Court of Appeals
characterized as "same transaction contextual evidence" occurred over a month
after the last supplemental offense report entry made under the name of Officer
Lewis concerning HPD Current Information Report Incident No. 115482609 and
over 3 months from the date of the original offense report entry made under the
name of Officer Lewis concerning HPD Current Information Report Incident No.
023382611.
Appellant contends that the lack of temporal proximity does not support
the Court of Appeals' conclusion that the extraneous offense evidence concerning
the grand jury subpoenas was admissible as "same transaction contextual
evidence". The Court of Appeals, in its opinion, did not directly address and analyze
appellant's argument in issue six concerning trial counsel's failure to request a
limiting instruction concerning the grand jury subpoena extraneous misconduct
evidence. Jordan, supra, at p. 20. Instead, the Court of Appeals found that, since
the grand jury subpoena evidence was "same transaction contextual evidence",
appellant was not entitled to a limiting instruction because Rule 404(b) was not
implicated. Therefore, trial "Counsel was not ineffective for failing to request an
improper limiting instruction regarding same transaction contextual evidence." Id.
at p. 22-23.
In its response to appellant's issue six concerning ineffective assistance of
counsel, the Court of Appeals pointed out that "We have already held that the
grand jury subpoena evidence was "same transaction contextual evidence"
"When evidence is admitted on this basis, Rule 404(b) is not implicated and the
defendant is not entitled to any limiting instruction concerning the use of that
evidence." Id. at p. 22.
However, when the Court of Appeals, addressed appellant's issue two
concerning the admissibility of the extraneous offenses, it held that the grand jury
subpoena evidence was admissible to show both motive pursuant to TEX. R. EVID. 404(b) and also as "same transaction contextual evidence." Id. at p. 14. Although
appellant disagrees with the Court of Appeals conclusion that the extraneous
offense grand jury subpoena evidence was admissible as "same transaction
contextual evidence", appellant contends that, since the Court of Appeals also
found that the extraneous offense evidence was admissible to show motive
pursuant to rule 404(b), supra, appellant was entitled to a rule 105(3), supra,
limiting instruction.
Appellant would also point out that the case of Rogers v. State, 853 S.W.2d
29 (Tex. Crim. App. 1993) cited by the Court of Appeals for the proposition that
the evidence regarding the grand jury subpoenas was admissible as "same
transaction contextual evidence", Jordan, supra, at p. 14, was a case in which the
Court of Criminal Appeals reversed the appellant's judgment of conviction after
finding that the Court of Appeals erred in finding that the extraneous offense
evidence was properly admitted as "same transaction contextual evidence". Id. at
35. Significantly, even though there was temporal proximity since the extraneous
offense of possession of marijuana arose out of the same arrest of the appellant
for burglary of a habitation and possession of methamphetamine, the Court of
Criminal Appeals stated that there was no necessity for the admission of the
10 extraneous offense evidence. Id. at 34-35.
Similarly, in appellant's instant appeal, the evidence of the extraneous
offenses concerning the grand jury subpoenas was not necessary to the jury's
understanding of the offenses of tampering with a government record. Therefore,
the Court of Appeals erred in concluding that the extraneous offense evidence
was admissible as "same transaction contextual evidence".
However, as the Court of Appeals also stated, the extraneous offense
evidence was admissible to show appellant's motive in falsifying the government
records pursuant to TEX. R. EV1D. 404(b). Jordan, supra, at p. 14. Therefore,
appellant was entitled to a limiting instruction under rule 105(a).
The Court of Appeals erred and this Court should reverse and remand
appellant's case back to the Court of Appeals in order to analyze appellant's issue
six.
PRAYER FOR RELIEF
Appellant prays that this Court grant his petition for discretionary review;
set this case for submission; and that, after submission, reverse the judgment of
the Court of Appeals and remand the case for further proceedings. TEX. R. APR.
PROC. 78.1 (d).
11 Respectfully submitted,
/s/Charles Hinton Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant
CERTIFICATE OF SERVICE
I certify that a copy of appellant's petition has been sent through the e-file
system and served on the following parties on May 11, 2015:
Alan Curry Chief Prosecutor Harris County District Attorney's Office 1201 Franklin, Ste. 600 Houston, Texas 77002-1923
State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, Texas 78711-3046
/s/Charies Hinton Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 832-603-1330 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant
12 CERTIFICATE OF COMPLIANCE
PURSUANT TO TEX. R. APP. PROC. 9.4(i){3)
Appellant's counsel certifies that the word count of this document is 2628.
/s/Charles Hinton Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 832-603-1330 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant
13 Opinion issued March 10, 2015
In The
o! For The
Jftttt SBfetrttt of Cexas;
NOS. 01-13-00775-CR 01-13-00776-CR
RALEIGH JORDAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas Trial Court Case Nos. 1329597 & 1329598
MEMORANDUM OPINION
After a jury convicted appellant, Raleigh Jordan, of two charges of
tampering with a government document, the trial court assessed punishment in
each case at two years' confinement, which it suspended, placing appellant under
two years' community supervision. In six issues on appeal, appellant contends (1) the evidence is legally insufficient; the trial court erred in (2) admitting extraneous
offense evidence, and (3) denying appellant a hearing on his motion for new trial;
(4) the State failed to turn over exculpatory evidence; (5) appellant was denied due
process because he was unaware of the charges against him until his arraignment
immediately before trial; and (6) appellant received ineffective assistance of
counsel because counsel did not seek a limiting instruction for extraneous offense
evidence. We affirm.
BACKGROIMD
Grand jury subpoenas raise questions
In July 2011, Harris County Assistant District Attorney Erin Epley was
contacted by a financial institution about a grand jury subpoena the company had
received that had been signed by Epley. The financial institution was concerned
because the subject of the subpoena, Lisa Heath Jordan, was married to appellant,
the police officer to whom the financial institution was ordered to direct its reply to
the subpoena.
Epley recalled authorizing the grand jury subpoena, and several others at the
same time, because she did not herself prepare the subpoenas, and it was only the
second time she had been called upon to sign a grand jury subpoena that someone
else had prepared. Before signing the grand jury subpoenas, she had checked to
make sure that each had an offense report listed to show that they were being issued as a part of an ongoing investigation. She would not have authorized the
subpoenas for a closed investigation, nor did she know that appellant, the officer
requesting the subpoenas, was married to Lisa Jordan, the subject of the subpoenas.
Because of her concerns and those of the financial institution that had
received the grand jury subpoena, Epley contacted Internal Affairs at the Houston
Police Department ["HPD"], which began an investigation.
The 2009 Police Report
Officer M. Monte was assigned to investigate the situation. He began by
looking at the offense reports used to obtain the grand jury subpoenas. Offense
report number 11548609T ["the 2009 report"] was initiated as a forgery
investigation on August 7, 2009, the same day appellant's wife obtained a
temporary restraining order against appellant because she had filed for divorce.
The complainant on the 2009 report was listed as "Chase Bank," but the
information in the narrative portion of the report was supplied by appellant.
Data entry clerk C. Johnson from the Burglary/Theft division of HPD
testified that she took the initial information from appellant for the 2009 report, in
which he alleged that his wife was committing fraud in connection with
government student loans. Appellant verbally described what he believed to be the
offense, and the initial report lists 15 items of evidence. Johnson, however, did not
recall that appellant had any evidence at the time she met with him, and the recovery date of the evidence listed was September 19, 2010. Johnson did not
recall meeting with appellant at any time other that the one time in 2009.
The 2009 report contains several supplements in addition to the initial report
recorded by Johnson. The first two supplements are by Officer C. Graves1, the
officer who was assigned to investigate the financial fraud that appellant alleged
his wife had committed. Graves set up a meeting with appellant, to which he said
he would bring evidence of his wife's crimes. However, appellant never produced
any documents to Graves. Graves wrote in her final supplement, which is dated
August 13, 2009, '1 explained [to appellant] that because the suspect was his
spouse that he could not file charges on her. I explained to him that this is a
community property state and that any monies taken, spent or charged was both of
their responsibility. I told him. that this is a civil matter and he needed to speak to
his attorney about the matter." Graves's supplement concluded, "This case will be
cleared unfounded because no crime was committed."
Graves was unaware of any further activity in the case until questioned
about it by Officer Monte as a part of his investigation of appellant in 2011. She
testified that she never authorized or was aware of any further supplements to the
2009 report, but when she reviewed it at Officer Monte's request she determined
We will refer to this witness as Lt. Graves, as that is how her name appears in the documentary evidence. By the time of trial, she had married and her name appears in the reporter's record as Lt. Southwell. 4 that it had been altered and added to. Specifically, evidence was added in 2010,
Graves felt harmed by the alterations and additions to the report because it caused
HPD to question her credibility. She was aware of no one other than appellant
who would have benefited from the altered report. Graves also testified that, had
the investigation remained closed, as she intended it to be, appellant could have not
used the report to obtain his wife's financial records via grand jury subpoenas
because a police report is necessary for issuing a grand jury subpoena.
There were several other supplements to the 2009 report made after it was
closed by Graves. One supplement was made by Officer Karavantos, a patrol
officer who had worked some extra jobs with appellant, but who had moved to
Florida by the time of trial. Four of these supplemental reports appeared to have
been made by Officer R.T. Lewis. Lewis's name is on the supplemental reports, as
well as his employee payroll number identifying him as the officer making the
report. The first of Lewis's supplemental reports is dated September 20, 2010, and
the last of bis supplemental reports is dated June 10, 2011. Each of the
supplements adds information or articles of evidence relating to Lisa Jordan's
alleged crimes.
Officer Lewis was appellant's partner at HPD at the time of the supplements,
and he testified at trial that he never investigated appellant's wife or wrote any of
the supplemental reports about appellant's wife. Lewis further testified that appellant knew his payroll number, which was used to identify Lewis as the officer
writing the supplement. Lewis never authorized appellant to use his payroll
number and enter the supplemental reports. In fact, Lewis testified that he advised
appellant not to investigate his wife himself.
The 2011 Police Report
In the course of his investigation regarding the grand jury subpoenas, Officer
Monte also discovered that police report 02338261 IT ["the 2011 report"] had been
used to support appellant's request for issuance of the grand jury subpoenas. This
police report was dated April 12, 2011, listed appellant as the complainant, and
alleged that Douglas Ray York and Stephen Kent Leatherman, attorneys who
represented appellant and his wife in their pending divorce proceeding, had
"intentionally and knowingly passed [] fraudulent court documents for the sole
purpose to defraud and deceive [appellant]." Again, Officer R.T. Lewis,
appellant's partner at HPD, was listed as the officer making the report and his
employee payroll number appears on the report.
At trial, Officer Lewis denied making this report, giving appellant the
authority to use his name and payroll number in making this report, or conducting
any investigation relating to appellant's wife. The Computer Forensics
HPD Officer Matthew Lezak, a computer forensic specialist, was asked to
examine the hard drive on appellant's work computer as a part of the internal
affairs investigation. Lezak testified that each time an officer would upload a
report, the system would create a report receipt. Appellant's computer had 48
report receipts. Of those 48 receipts, 40 of them were to appellant's own payroll
number. However, four of the receipts—three supplements to the 2009 report and
the initial 2011 report—had Officer Lewis's payroll number. Thus, the forensic
computer evidence showed that those four entries were made from appellant's
computer using Lewis's payroll number. Additionally, the face of the reports
themselves indicate that three supplements purportedly made by Lewis to the 2009
report and the 2011 report were made from appellant's computer—HP DC6005
319808.
Lezak also found letters on HPD City of Houston letterhead, which were
addressed to 10 different financial institutions and were meant to accompany the
grand jury subpoenas. The letters stated, "Please direct your reply to the personal
attention of Officer Jordan; as stated on the face of this Subpoena."
Other Evidence
F. Quinn, appellant's sergeant in the Major Offender's division at HPD,
testified that appellant's pending divorce "seemed to kind of consume him." Quinn never gave appellant permission to investigate his wife, but told him to have
the financial crimes unit investigate it instead. Quinn stated, "I told him, I gave
him a direct order not to conduct that investigation, not to use a computer to obtain
information about her or any kind of city equipment involving that investigation."
Quinn also testified about the importance of maintaining the integrity of
police reports: "Well, the integrity has to be maintained. There shouldn't be any
exception. It's critical, it's critical we be able, to rely on those reports and those
reports be truthful and reflect nothing other than the truth."
Finally, Quinn testified that after the investigation began he received at least
seven envelopes addressed to appellant at the Major Crimes Division containing
financial records relating to Lisa Jordan.
Appellant charged with tampering with government records
As a result of the internal affairs investigation, appellant was arrested and
charged with tampering with government records, specifically, the 2009 and 2011
police reports. The State alleged that appellant made false entries in the reports by
entering information in the reports using Officer Lewis's name and employee
payroll number.
SUFFICIENCY OF THE EVIDENCE
In issue one, appellant contends the evidence is legally insufficient.
Specifically, appellant argues that because the author of the supplemental reports is unknown and no witness "testified as to who actually made the entries," the
evidence is legally insufficient to show that appellant altered the police reports.
Standard of review and applicable law
We review the legal sufficiency of the evidence by considering all of the
evidence "in the light most favorable to the prosecution" to determine whether any
"rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt:9 Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct 2781,
2788-89 (1979). The standard is the same for both direct and circumstantial
evidence casQS.King v. State, 895 S.W.2d 701, 703 (Tex. Grim. App. 1995) (en
bane) (citing McGoldrickv. State, 682 S.W.2d 573, 577 (Tex. Grim. App. 1985)).
Our role is that of a due process safeguard, ensuring only the rationality of the trier
of fact's finding of the essential elements of the offense beyond a reasonable
doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Grim. App. 1988). We give
deference to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from the
facts. Williams v. State, 235 S.W.3d 742, 750 (Tex, Grim. App. 2007). However,
our duty requires us to "ensure that the evidence presented actually supports a
conclusion that the defendant committed" the criminal offenses of which he is
accused. Id. Section 37.10 of the Texas ' Penal Code, titled "Tampering With
Governmental Record," states in relevant part, "A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental,
record." TEX. PENAL CODE ANN. §37.10(a)(l) (Vernon Supp. 2013). Apart from
exceptions not applicable here, an offense under section 37.10 is a Class A
misdemeanor unless the actor's intent is to defraud or harm another, in which event
the offense is a state jail felony. See TEX. PENAL CODE
Aw. § 37.10(c)(l) (Vernon Supp. 2008). The term defraud is not defined, and
ctundeflned statutory terms are to be understood as ordinary usage allows, and
jurors may freely read statutory language to have any meaning which is acceptable
in common parlance." Hunter v. State, No. 14-13-00847-CR, 2014 WL 6923116,
at *3 (Tex. App.—Houston [14th DistJ Dec. 9, 2014, pet. filed) (mem. op, not
designated for publication) (citing Clinton v. State, 354 S.W.3d 795, 800 (Tex.
Grim. App. 2011)).
Analysis
Appellant contends the evidence does not support his convictions because
"Karavantos was not present to deny that he did not make the entries in the [2009]
reportfj" and neither Lewis "nor the other witnesses testified as to who actually
made the entries." The State responds that there is sufficient circumstantial
evidence to support the jury's verdict. We agree with the State.
1.0 Lewis testified that he did not investigate appellant's wife, he did not make
the entries into either police report, and he did not authorize appellant to do so
using Lewis's name and employee payroll number. Additionally, several of the
reports and supplements attributed to Lewis were made from appellant's work
computer, which was password protected. No other person, including the absent
Karavantos, had a motive to enter supplements or reports and falsely attribute them
to Lewis. Appellant, however, had the motivation to file such reports by reopening
the closed investigation and starting a new investigation against the divorce
lawyers in his case so that he could obtain his wife's financial records through a
grand jury subpoena, which requires an active investigation. And, by using Officer
Lewis's payroll number to make the supplements and reports, appellant created the
appearance that an impartial investigator was working on the case. Indeed,
Assistant District Attorney Epley testified that she would not have signed the grand
jury subpoenas had she known they were for appellant's wife's records.
Based on this evidence, the jury could have reasonably concluded that
appellant made a false entry in a government document by making entries in both
reports after the first case had been closed and falsely attributing those entries to
Lewis.
We overrule issue one.
11 EXTRANEOUS OFFENSES
In issue two, appellant argues that the Court's decision to admit evidence of
extraneous acts, namely of the filing of the grand jury subpoenas, was reversible
error. Specifically, appellant argues that "[t]he admittance of [evidence relating to
the grand jury subpoenas] greatly influenced the jury into finding [appellant] guilty
on both counts, although the evidence of filing grand jury subpoenas [was]
irrelevant to the charges of tampering with a governmental record, especially since
the State approved the grand jury subpoenas."
Standard ofrevie\v and applicable law
We review a trial court's admission or exclusion of extraneous-offense
evidence for abuse of discretion, Moses v. State, 105 S.W.Sd 622, 627 (Tex. Grim.
App. 2003). A trial court's decision regarding admissibility of evidence will be
sustained if correct on any theory of law applicable to the case, even when the
court's underlying reason for the decision is wrong. Romero v. State, 800 S.W.2d
539, 543-44 (Tex. Grim. App. 1990). Rule 404(b) provides that evidence of "other
crimes, wrongs or acts" is inadmissible to prove a defendant's character in order to
show action in conformity therewith. TEX. R. EvTD, 404(b). This type of evidence
may be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Id;Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st
12 Dist] 2003, pet. dism'd). This list is not exclusive. Turner v. State, 754 S.W.2d
668, 672 (Tex. Crim. App. 1988). Also, "events do not occur in a vacuumf,]" and
evidence of extraneous offenses may be admissible "[t]o show the context in which
the criminal act occurred." Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.
1972); see also Rogers v. State, 853 S.W.2d 29, 32-33 (Tex. Crim. App.
1993) (discussing admissibility of same transaction contextual and background
evidence).
The State contends that the evidence regarding the issuance of the grand jury
subpoenas was admissible for two reasons: (1) to show appellant's motive in
falsifying the police reports, and (2) as "same transaction contextual evidence."
We agree with both arguments.
Regarding motive, there was testimony that appellant needed a police report
to obtain a grand jury subpoena. The ADA testified that she would not issue a
grand jury subpoena unless there was a valid police investigation. The State
showed that his motivation for falsifying the reports using Lewis's information was
to reopen the 2009 case and to initiate the 2011 case so that appellant could then
use grand jury subpoenas to obtain his wife's financial information for use in his
pending divorce. Without showing evidence of appellant's motive, i.e., that he
needed valid police investigations to obtain grand jury subpoenas, the evidence of
13 his falsifications of the police reports would have made little sense. As such, the
evidence of the grand jury subpoenas was admissible to show appellant's motive in
falsifying the government records. See TEX. R. Evro. 404(b).
For the same reason, the evidence regarding the grand jury subpoenas was
admissible as "same transaction contextual evidence."
Same transaction contextual evidence is deemed admissible as a so- called exception to the propensity rule where "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial of any one of them cannot be given without showing the others." The reason for its admissibility "is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." Necessity, then, seems to be one of the reasons behind admitting evidence of the accused's acts, words and conduct at the time of the commission of the offense. Necessity, then is an "other purpose" for which same transaction contextual evidence is admissible under Rule 404(b). Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted.
Rogers v. State, 853 S.W.2d 29, 33 (Tex. Grim. App. 1993) (citations omitted).
As we stated above, without showing that appellant needed valid investigations to
obtain grand jury subpoenas, the evidence of his falsifications of the police reports
would have made little sense. As such, the evidence regarding the issuance of the
grand jury subpoenas was also admissible as "same transaction contextual
evidence."
We overrule issue two. 14 MOTION FOR NEW TRIAL
In issue three, appellant "asserts that his constitutional rights were denied by
not having a hearing on his Motion for New Trial."
Background
The trial court imposed judgment on July 26, 2013; and appellant timely
filed a Motion for New Trial on August 23, 2013, which alleged ineffective
assistance of counsel, among other claims. See TEX. R. APP. P. 21.4(a) (stating
motion for new trial must be filed no later than 30 days after the court imposes
sentence). However, appellant's motion did not include any affidavit in support of
the allegations made therein.
The docket sheet shows that the Motion for New Trial hearing was reset
several times, twice by agreement of both parties and once at appellant's request.
No hearing was ever held. Instead, on December 8, 2013, appellant filed a Bench
Brief in Support of his Motion for New Trial, which for the first time contained an
affidavit by appellant in support of the allegations set forth in his motion. The
State also filed the affidavit of appellant's trial counsel, refuting the ineffective
assistance of counsel allegations in appellant's motion.
Appellant's Motion for New Trial was overruled by operation of law two
days later on October 10, 2013. See TEX. R. APP. P. 21.8 (allowing trial court 75
days to rule on motion for new trial or deeming motion denied on 76* day).
15 Standard of review and applicable law
The trial court has a duty to hold an evidentiary hearing on a defendant's
motion for new trial if the motion and accompanying affidavit raise an issue (1)
that is not determinable from the record, and (2) on which the defendant could be
granted relief. Lucero v. State, 246 S.W.3d 86, 94 (Tex. Grim. App. 2008). When
the motion raises matters that are not determinable from the record, to prevent
"fishing expeditions/' the motion must be supported by an affidavit that explicitly
sets out the factual basis for the claim. Smith v. State, 286 S.W.Sd 333, 339 (Tex.
Crim. App. 2009). The affidavit does not need to establish aprimafacie case or
even reflect every component to obtain relief on the claim, but must merely reflect
"reasonable grounds" for a court to hold that relief could be granted. Wallace v.
State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Where a defendant asserts
that he is entitled to a hearing on a motion for new trial raising ineffective
assistance of counsel, the motion and affidavit "must allege sufficient facts from
which a trial court could reasonably conclude both that counsel failed to act as a
reasonably competent attorney and that, but for counsel's failure, there is a
reasonable likelihood that the outcome of his trial would have been
different." Smith, 286 S.W.3d at 341 (emphasis in original).
We review the trial court's decision on whether to hold a hearing on a
defendant's motion for new trial for abuse of discretion. Lucero, 246 S.W.3d at 94.
16 A trial court abuses its discretion only when its decision lies outside the zone of
reasonable disagreement. Smith, 286 S.W.Sd at 339.
Here, appellant's Motion for New Trial, though timely, did not have a
supporting affidavit. A motion for new trial alleging facts outside the record, as
here, is not a proper pleading and is defective; a trial court does not err in refusing
to grant a hearing on such a motion. Klapesky v. State, 256 S.W.3d 442, 454 (Tex.
App.—Austin 2008, pet. ref d); see also Wallace, 106 S.W.3d at 108.
Appellant's affidavit in support of his Motion for New Trial was not filed
until December 8, 2013, several months after the time for filing amended Motions
for New Trial. See TEX. R. APP. P. 21.4 ("Within 30 days after the date when the
trial court imposes or suspends sentence in open court but before the court overrule
any preceding motion for new trial, a defendant may, without leave of court, file
one or more amended motions for new trial."). Filing an affidavit in support of a
motion for new trial more than thirty days after sentencing is considered an
untimely attempt to amend the motion. Klapesky, 256 S.W.3d at 455 (citing
Dugard v. State, 688 S.W.2d 524, 529-30 (Tex. Grim. App. 1985), overruled on
other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Grim. App. 1989);
Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.)).
17 Because appellant's untimely affidavit was not properly before the trial
court, the trial court did not err in refusing to grant a hearing on appellant's
unsupported motion.
We overrule issue three.
EXCULPATORY EVIDENCE
In his issue four, appellant contends the prosecution failed to disclose
exculpatory evidence—his own recorded statement—in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
Applicable law
In Brady, the United States Supreme Court held "'that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution."' Pena v. State, 353 S.W.3d 797, 809
(Tex. Grim. App. 2011) (quoting Brady, 373 U.S. at 87). "The scenarios to
which Brady applies 'involve[ ] the discovery, after trial of information which had
been known to the prosecution but unknown to the defense.'"/^, at
810 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). Consequently, the
State does not have a duty to disclose if the defendant is actually aware of
the exculpatory evidence. Id.
18 Analysis
In this case, the exculpatory evidence of which appellant complains is his
own recorded statement. No disclosure was required because appellant was
actually aware of the contents of his own statement. Further, the record shows that
the State provided notice of its intent to offer the statement into evidence almost a
year before the trial, even though, ultimately it was not admitted.
We overrule issue four.
DUE PROCESS
In issue five, appellant contends he was denied due process of law because
"he was arraigned on the same day as the trial," and "was not aware until the trial,
of the charge against him." However, the record shows that appellant was, in fact,
arraigned at a pretrial hearing the day before the trial started. An arraignment is
not apart of a trial by jury and is one of the proceedings that can be disposed of by
a pre-trial hearing. Woodv. State, 515 S.W.2d 300, 303 (Tex. Grim. App. 1974).
To the extent that appellant is complaining that the indictment did not
provide him notice of the charged offense, we note that appellant never filed a
motion to quash or otherwise complained to the trial court that he was unaware of
the charges against him. Article 1.14 of the Texas Code of Criminal
Procedure provides that a defendant waives the right to object to a defect, error, or
irregularity of form or substance in an indictment if he does not object before the
19 date on which the trial on the merits commences. TEX. CODE CRIM. PROC. ANN. art.
1.14 (Vernon 2005. By failing to object or moving to quash the indictment before
the date of his trial, appellant has waived his complaint regarding lack of
notice. See TEX. CODE CRIM. PROC. ANN. art. 1.14.
We overrule issue five.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issue six, appellant contends that he received ineffective assistance of
counsel because his trial attorney did not "request a limiting instruction concerning
the grand jury subpoena extraneous misconduct evidence[.]"
We consider claims of ineffective assistance of counsel under the two-prong
test adopted in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). To prevail on an ineffective assistance of counsel claim, appellant must
show that (1) counsel's performance was deficient, meaning it fell below an
objective standard of reasonableness, and (2) the deficiency prejudiced the
defendant, meaning there was a reasonable probability that, but for the counsel's
deficient performance, the results of the trial would have been different. Id; Ex
parteNapper, 322 S.W.Sd 202, 246, 248 (Tex. Grim. App. 2010). The burden is on
appellant to prove by a preponderance of the evidence that counsel was
ineffective. See McFarlandv. State, 928 S.W.2d 482, 500 (Tex. Grim. App. 1996).
20 The first prong of Strickland requires that the challenged acts or omissions
of counsel fall below the objective standard of professional competence under
prevailing professional norms.Perez v. State,3lQ S.W.Sd 890, 893 (Tex. Grim.
App. 2010). Appellate courts are highly deferential to trial counsel and avoid
evaluating counsel's conduct in hindsight. Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984). Thus, courts must "indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy." Strickland, 466 U.S. at 689, 104 S. Ct at 2065.
The second prong of Strickland requires a reasonable probability that the
outcome of the case would have been different. Id at 694, 104 S. Ct. at 2068. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome, meaning that counsel's errors must be so serious that they deprive
appellant of a fair trial. Smith, 286 S.W.3d at 340.
Allegations of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 65
S.W.3d 59j 63 (Tex. Crim. App. 2001). "In the rare case in which trial counsel's
ineffectiveness is apparent from the record, an appellate court may address and
dispose of the claim on direct appeal." Lopez v. State, 343 S.W.3d 137, 143 (Tex.
21 Crim. App. 2011). When the record is silent as to the reasoning behind an alleged
deficiency by trial counsel, "we will assume that counsel had a strategy if any
reasonably sound strategic motivation can be imagined." Id.; see also Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ("[I]n the absence of evidence
of counsel's reasons for the challenged conduct, an appellate court . . . will not
conclude the challenged conduct constituted deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.").
Appellant argues that "Appellant's attorneys [sic] failure to request a
limiting instruction concerning the extraneous offense evidence and testimony
concerning the grand jury subpoenas resulted in ineffective assistance of counsel."
The State responds that no limiting instruction is required for same-transaction
contextual evidence. We agree with the State.
"Same transaction contextual evidence" refers to those events and
circumstances that are intertwined, inseparable parts of an event that, if viewed in
isolation, would make no sense at all. Delgado v. State, 235 S.W.3d 244, 253
(Tex. Crim. App. 2007). We have already held that the grand jury subpoena
evidence was "same transaction contextual evidence." "When evidence is
admitted on this basis, Rule 404(b) is not implicated and the defendant is not
entitled to any limiting instruction concerning the use of that evidence. Id. Counsel
22 was not ineffective for failing to request an improper limiting instruction regarding
same transaction contextual evidence.
We overrule issue six.
CONCLUSION
We affirm the trial court's judgments.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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