Thomas Wayne Florence v. State

Opinion issued July 30, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00822-CR
———————————
THOMAS WAYNE FLORENCE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 10CR1217

MEMORANDUM OPINION

A jury found appellant, Thomas Wayne Florence, guilty of sexual assault of

a child and assessed his punishment at seventy years’ confinement. Appellant

asserts twenty-four issues on appeal challenging the sufficiency of the evidence,

the constitutionality of Penal Code section 22.011(a)(2), the affidavit supporting
his arrest and search warrants, and certain evidence presented against him, among

other complaints.1

We affirm.

Background

In February 2010, A.G., who was sixteen at the time, sought a psychiatric

evaluation at Ben Taub Hospital. A blood test performed at the hospital revealed

that A.G. was pregnant. A.G. later told a forensic interviewer that it was possible

that appellant, who was forty at the time, was the father of her child and that she

had had sex with appellant on numerous occasions. A.G.’s child was born in

October 2010, and a DNA test identified appellant as the father of the child.

Appellant was indicted for sexual assault of A.G., a child who was younger

than seventeen at the time of the assault, by penetration of her sexual organ with

his sexual organ. A jury convicted him of sexual assault of A.G. and assessed his

punishment at confinement for seventy years. This appeal followed.

1
Appellant filed multiple briefs. Among other documents, appellant filed his
“Appellant’s Brief” on September 13, 2012; a “Supplement to the Appellant’s
Brief” on September 24, 2012 raising “issue No. 25”; a second “Appellant’s
Supplemental Brief [on] Issue No. 25” filed December 13, 2012; and his “Pro Se
Appellant’s Brief” on October 9, 2012, containing fifty-nine handwritten pages of
argument. This Court did not grant appellant leave to file additional briefing in
this matter. However, we construe the October 9, 2012 brief as an amended brief
replacing the previously filed briefs and address the issues raised in the October 9,
2012 brief. See TEX. R. APP. P. 38.7 (“A brief may be amended or supplemented
whenever justice requires, on whatever reasonable terms the court may
prescribe.”).
2
 Sufficiency of the Evidence

In his first issue, appellant argues that the evidence was factually insufficient

to support his conviction for sexual assault of a child. In part of his second issue,

appellant argues that the State did not establish the “intentionally or knowingly

element” because it did not establish that he knew A.G. was under the age of

seventeen. In his seventh issue, appellant argues that the State alleged an

“impossible date” for the date of the sexual assault in the indictment. We construe

this as a challenge to the sufficiency of the evidence on this point. Appellant also

argues as part of various other issues that he did not commit a “forcible rape” of

A.G. We likewise construe this as a challenge to the sufficiency of the evidence.

We review the sufficiency of the evidence using the standard outlined in

Jackson v. Virginia and its progeny. 443 U.S. 307, 318, 99 S. Ct. 2781, 2788–89

(1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). We review

all of the evidence admitted at trial in the light most favorable to the jury’s verdict

and decide whether any rational jury could have found each element of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

Appellant was indicted for sexual assault of a child. “A person commits an

offense if the person . . . intentionally or knowingly . . . causes the penetration of

the anus or sexual organ of a child by any means.” TEX. PENAL CODE ANN.

§ 22.011(a)(2)(A) (Vernon 2011). A child is “a person younger than 17 years of

3
age.” Id. § 22.011(c)(1). Section 22.011(a)(2) is Texas’s strict liability statutory

rape statute. See May v. State, 919 S.W.2d 422, 424 (Tex. Crim. App. 1996)

(construing previous version of statute); Byrne v. State, 358 S.W.3d 745, 746–47

(Tex. App.—San Antonio 2011, no pet.) (identifying section 22.011(a)(2)(A) as

“Texas’s strict liability child sexual assault provision (the statutory rape statute)”).

Here, Appellant was indicted as follows:

THOMAS WAYNE FLORENCE on or about the 27th day of
FEBRUARY, A.D., 2010, and anterior to the presentment of this
indictment in the County of Galveston and State of Texas, did then
and there intentionally or knowingly cause the penetration of the
sexual organ of [A.G.], a child who was then and there younger than
17 years of age, by Thomas Wayne Florence’s sexual organ.

At trial, R.G., the mother of the complainant, A.G., testified that A.G. was

born on August 12, 1993. She testified that A.G. was “[v]ery rebellious,” had a

drug problem, and had run away several times. Starting on January 4, 2010, A.G.

ran away from home several times and would be missing for several days each

time. R.G. testified that A.G. frequently ran away with a friend, L.R, and that both

girls had been located on at least one occasion after the police contacted appellant.

In February 2010, following another of A.G.’s disappearances, R.G. received a

phone call from Officer C. Garcia, who had been working with A.G., indicating

that A.G. and L.R. were at the police station. A.G. was very intoxicated and had

threatened to kill herself, so the police advised R.G. to send A.G. to Ben Taub

Hospital for a suicide assessment.
4
 On the way to the hospital, A.G. confessed to her mother that she might be

pregnant. R.G. suspected that appellant might have been involved, but A.G. would

not confirm that he was the father. She cried and stated, “Mama, please don’t lock

him up,” and that “he planned this.” At the hospital, a blood test confirmed that

A.G. was pregnant. A.G. delivered her child on October 22, 2010.

L.R. testified that she saw appellant and A.G. having sex, meaning vaginal

intercourse, during the times that she and A.G. had run away and that A.G. was

sixteen years old at that time. L.R. also testified that appellant knew that A.G. was

sixteen when he had sexual intercourse with her.

Officer Garcia, who had worked on locating A.G. each time she ran away in

January and February 2010, testified that he spoke with appellant in January 2010

about locating A.G. and L.R. and told appellant that they were sixteen and fifteen

years old, respectively.

Wanette Florence, appellant’s wife, testified that appellant admitted having

sexual relations with A.G., whom he had met in late January 2010. When she

discovered that A.G. was pregnant, appellant told her that there was a “50-50

chance” he was the father of the child.

Amy Smuts, an employee of the University of North Texas Health Science

Center in Fort Worth, testified that she tested DNA samples from appellant, A.G.,

and the baby. She reported that the probability that appellant was the father of

5
A.G.’s baby was 99.99999995%. Smuts testified that she could say with

“scientific certainty” that appellant was the father of A.G.’s baby.

The testimony of these witnesses and the physical evidence is such that a

reasonable jury could have determined beyond a reasonable doubt that appellant

penetrated the sexual organ of A.G., a child younger than seventeen. See TEX.

PENAL CODE ANN. § 22.011(a)(2)(A); Byrne, 358 S.W.3d at 746–47. The statute

does not require that the assault have been forcible or against the will of the child.

See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); Byrne, 358 S.W.3d at 746–47

(stating that section 22.011(a)(2)(A) is a strict liability sexual assault provision).

Likewise, the statute does not require that appellant knew that A.G. was under the

age of seventeen. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A); Byrne, 358

S.W.3d at 746–47.

The evidence was likewise sufficient to show that the sexual assault

occurred at some point on or before the date alleged in indictment. See Sledge v.

State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) (holding that “on or about”

language allows State to prove date other than that alleged in indictment as long as

date is anterior to presentment of indictment and within statutory limitations

period); see also TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(B) (Vernon 2011)

(providing that there is no statutory limitations period for offense of sexual assault

of child under section 22.011(a)(2)).

6
 We overrule these issues.

Constitutionality of Section 22.011

In the remainder of his second issue, appellant argues that Penal Code

section 22.011 is unconstitutionally vague, and he challenges the provision’s

constitutionality on both state and federal grounds. We review the constitutionality

of a criminal statute de novo. Byrne, 358 S.W.3d at 748. The individual

challenging the constitutionality of the statute bears the burden of establishing

unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).

We presume that the statute is constitutional and that “the Legislature has not acted

unreasonably or arbitrarily.” Id.; Byrne, 358 S.W.3d at 748.

Appellant argues that prosecution under Penal Code section 22.011 violated

his equal protection rights because defendants prosecuted under other provisions of

the Penal Code can assert the defense of consent while he cannot. Appellant does

not argue that persons convicted under section 22.011(a)(2) are a suspect class or

that the right to assert a non-statutory defense is a fundamental right. Accordingly,

we review section 22.011(a)(2) to determine whether it is rationally related to a

legitimate governmental purpose. Martin v. State, 335 S.W.3d 867, 878 (Tex.

App.—Austin 2011, pet. ref’d) (citing Kadrmas v. Dickinson Pub. Sch., 487 U.S.

450, 457–58, 108 S. Ct. 2481, 2487 (1988)). This standard of review is applied

under both the federal and state equal protection clauses. Id.

7
 Through Penal Code section 22.011(a)(2), the Legislature made it a crime to

have sex with a child, i.e., a person under seventeen, regardless of the actor’s

knowledge of the child’s age or the consent of child. See TEX. PENAL CODE ANN.

§ 22.011(a)(2); see also id. § 22.011(e) (providing affirmative defenses to

prosecution under section 22.011(a)(2) if actor was spouse of child or if actor was

not more than three years older than child and child was fourteen years of age or

older); May, 919 S.W.2d at 423 n.1 (noting that Legislature abolished “promiscuity

defense” effective September 1, 1994). This law is rationally related to the

legitimate governmental purpose of protecting minors from sexual exploitation.

See Byrne, 358 S.W.3d at 749–51.

Appellant further argues that “the Texas due course of law analysis under

the Texas Constitution is different and provides greater protection to [him] than the

Due Process Clause of the United States Constitution.” He argues generally that

“these due process and procedural and substantive due process and due course of

law violations” deprived him of his liberty. However, multiple courts of this state,

including this one, have held that section 22.011(a)(2) is constitutional under both

the Texas and the United States Constitutions. See Byrne, 358 S.W.3d at 750–51

(holding, under Texas Constitution, that “[s]trict liability sex crimes are a valid

exercise of the state’s authority and rationally support a legitimate state interest”

and, under Unites States Constitution, that “statute is not arbitrary and capricious

8
because it serves a reasonable state interest by protecting children from sexual

assault”); Scott v. State, 36 S.W.3d 240, 241–42 (Tex. App.—Houston [1st Dist.]

2001, pet. ref’d) (overruling federal due process challenge, finding section

22.011(a)(2)(A) furthers legitimate state interest and does not offend any

fundamental individual right); Hicks v. State, 15 S.W.3d 626, 631 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d) (upholding section 22.011(a)(2)(A) against

due course of law challenge). Appellant has not provided any argument or citation

to legal authority indicating that the reasoning in these cases does not apply here or

overcoming the presumption that the statute is constitutional. See Rodriguez, 93

S.W.3d at 69.

We overrule appellant’s second issue.

Motion to Suppress

In his third, fourth, and sixth issues, appellant complains that the affidavit

supporting his arrest and search warrants was based on fraud and knowing

misrepresentations, and, thus, his DNA was illegally obtained and the trial court

abused its discretion in denying his motion to suppress his DNA evidence

following his Franks hearing.2 In part of his seventh issue, appellant argues that

2
In Franks v. Delaware, the United States Supreme Court held that when “the
defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment requires that a
9
the affidavit alleges an impossible date—February 26, 2010—for the date of the

offense.

We review a trial court’s ruling on a Franks motion and on a motion to

suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000); Jones v. State, 338 S.W.3d 725, 739 (Tex.

App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, while we review de novo application-of-law-to-fact

questions that do not turn upon credibility and demeanor. Jones, 338 S.W.3d at

739; see Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). When

no findings of fact were made, we assume that the trial court made implicit

findings of fact that support its ruling, as long as the implicit findings are supported

by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).

“An affidavit supporting a search warrant begins with a presumption of

validity; thus, the defendant has the burden of making a preliminary showing of

deliberate falsehoods in that affidavit before he is entitled to a Franks hearing.”

Gates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). There is an

assumption that the probable cause showing required by the Fourth Amendment be

hearing be held at the defendant’s request.” 438 U.S. 154, 155–56, 98 S. Ct. 2674,
2676 (1978).
10
truthful, but that is not to say that every fact in a supporting affidavit must

necessarily be correct. Franks v. Delaware, 438 U.S. 154, 164–65, 98 S. Ct. 2674,

2681 (1978). Rather, a misstatement in an affidavit that is the result of simple

negligence or inadvertence, as opposed to reckless disregard for the truth, will not

make the warrant invalid. See Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim.

App. 1987).

If the appellant establishes by a preponderance of the evidence that a false

statement made knowingly, intentionally, or with reckless disregard for the truth

was included in a probable cause affidavit and was material to establish probable

cause, the false material must be excised from the affidavit. Franks, 438 U.S. at

155–56, 98 S. Ct. at 2676; Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App.

2007). If the affidavit’s remaining content is insufficient to establish probable

cause, the search warrant must be voided and the fruits of the search excluded to

the same extent as if probable cause were lacking on the face of the affidavit.

Franks, 438 U.S. at 156, 98 S. Ct. at 2676; Harris, 227 S.W.3d at 85.

Here, Officer H. Johnson provided the affidavit that was used to secure an

arrest warrant and a search warrant for appellant’s DNA. Office Johnson averred

that appellant was a suspect in an alleged sexual assault of a child, A.G., and that

Officer Johnson, as the affiant, had probable cause to obtain appellant’s DNA for

the following reasons: Officer Johnson learned from reading Galveston Police

11
Department (GPD) reports that A.G. had run away and had been reported missing;

Officer Garcia contacted appellant regarding A.G.’s whereabouts, as he had on

previous occasions, and, eventually, A.G. agreed to turn herself in to GPD; A.G.

was transported to Ben Taub Hospital for psychiatric evaluation for “drug use,

suicidal thoughts and attempts”; Officer Garcia reported that R.G. informed him

that she discovered A.G. was pregnant while at the hospital and that A.G. told R.G.

appellant was the baby’s father; Officer Johnson observed a forensic interview of

A.G. on March 9, 2010, in which A.G. stated that appellant might be the father of

her baby, that she had had sex with him on multiple occasions, and that “the last

time they had sex was on February 26, 2010 . . . at a house in Galveston on a

mattress on the floor”; and Officer Johnson had spoken with Wanette Florence,

who stated that appellant believed A.G. was eighteen years old. Appellant argued

that this affidavit contained deliberate misstatements, falsehoods, and material

omissions and that Officer Johnson made it with reckless disregard for its

accuracy. On appellant’s motion, the trial court held a Franks hearing.

At the hearing, appellant introduced the video recording of A.G.’s forensic

interview. In the recording, A.G. stated that the last time she had had sex with

appellant was after Valentine’s Day and that the last time she had seen appellant

was February 26, 2010. Officer Johnson agreed that the affidavit contained a

misstatement regarding the last time A.G. had had sex with appellant, but she said

12
that she made the mistake in good faith. She testified that the affidavit correctly

conveyed to the magistrate that A.G. stated that she had had sex with appellant in

February 2010, that she did not include any intentional falsehoods in her affidavit,

and that she did not intend to deceive anyone. The trial court overruled appellant’s

motion to suppress the arrest warrant and the evidence—appellant’s DNA—

obtained from the search warrant.

Thus, Officer Johnson mistakenly averred that A.G. stated that she had last

had sex with appellant on February 26, 2010, when, in fact, A.G. had stated that

she had had sex with appellant after Valentine’s Day and had last seen appellant on

February 26, 2010. However, Officer Johnson testified at the Franks hearing that

she made this mistake in good faith and did not intend to deceive anyone. The trial

court could have found, based on this evidence, that the false statement was not

made knowingly, intentionally, or with reckless disregard for the truth. See Torres,

182 S.W.3d at 902 (holding that we assume trial court made implicit findings in

support of its ruling); Dancy, 728 S.W.2d at 783 (holding that misstatement as

result of simple negligence or inadvertence will not make warrant invalid).

Furthermore, even excising the allegedly false statement, the affidavit still

supports a finding of probable cause because A.G. also stated, as Officer Johnson

correctly averred, that appellant was possibly the father of her baby and that she

had had sex with appellant on multiple occasions. See Franks, 438 U.S. at 155–56,

13
98 S. Ct. at 2676 (holding that affidavit must be voided only if remaining content is

insufficient to support probable cause). Regarding his complaint that the affidavit

alleged an “impossible date” for the offense, appellant cites no authority that the

affidavit was required to allege the exact date of the offense to be valid, and,

indeed, the law does not support such a conclusion. See TEX. CODE CRIM. PROC.

ANN. art. 18.01 (Vernon 2005) (providing requirements for affidavit in support of

search warrant). Thus, we conclude that the trial court did not err in denying

appellant’s motion to suppress the arrest warrant and DNA evidence.

Appellant also argues that the complaint associated with the search warrant

did not meet the requirements of Code of Criminal Procedure article 1.23, because

it did not state “in the name and authority of the State of Texas nor conclude with

against the dignity of the State.” However, these requirements pertain to an

indictment, not a “complaint.” See id. art. 1.23 (Vernon 2005). Appellant’s

indictment contained the statutorily required language.

Finally, appellant argues that the trial court erred in failing to make findings

of fact and conclusions of law in denying his motion to suppress. However,

appellant does not cite any authority indicating the trial court was required to do

so. Rather, when the trial court does not make findings of fact, we assume that it

made implicit findings of fact that support its ruling, as long as the findings are

supported by the record. See Torres, 182 S.W.3d at 902.

14
 We overrule appellant’s complaints on these issues.

Alleged Misconduct by the State

In his fifth and eighteenth issues, appellant argues that the State and its

agents used illegal methods and investigative procedures and falsified dates and

other evidence. He argues generally that his conviction was unlawful and was

based on fraud and conspiracy, but the only allegedly false evidence he identifies is

Officer’s Johnson’s affidavit. We have already concluded that the trial court did

not err in denying appellant’s motion to suppress the DNA evidence obtained with

the search warrant based on Johnson’s affidavit. These issues are overruled.

In his ninth issue, appellant generally claims that fundamental errors by the

trial court harmed him and denied him a fair trial “based on fraud.” He argues

generally that “the entire record . . . shows clear plain errors. . . .” This issue is

waived for failure to provide “a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.” See TEX. R. APP.

P. 38.1(i).

In his twenty-first issue, appellant argues that “the State committed grand

jury fraud to obtain the illegal indictment with null and void pleadings.” We have

already addressed appellant’s complaints regarding Officer Johnson’s affidavit and

overruled his complaints on that issue. To the extent he is asserting a different

argument, this issue is likewise waived for failure to adequately brief it. See id.

15
 Admissibility of State’s DNA Evidence

In his eighth, seventeenth, and twenty-second issues, appellant challenges

the trial court’s ruling admitting the State’s DNA evidence through the testimony

of Amy Smuts. He contends that the DNA evidence was inadmissible, that Smuts

was an unqualified forensic identification expert, and that the trial court “abused its

discretion in applying Kelly and Daubert.”

We review a trial court’s ruling admitting or excluding evidence for an

abuse of discretion, and we will uphold the ruling if it is supported by the record

and is correct under any legal theory applicable to the case. Ramos v. State, 245

S.W.3d 410, 417–18 (Tex. Crim. App. 2008). In its position as gatekeeper of

scientific evidence, the trial court has discretion in determining the relevance and

reliability of expert testimony. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim.

App. 1992); see also Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App.

2005) (holding that when subject of expert’s testimony is “hard” scientific

knowledge, basis of testimony must be grounded in accepted methods and

procedures of science and must meet three criteria: (1) underlying scientific theory

must be valid; (2) technique applying theory must be valid; and (3) technique must

have been properly applied on occasion in question).

The record here shows that the trial court conducted a hearing outside the

jury’s presence to determine the admissibility of Smuts’ testimony. At the hearing,

16
Smuts, who is a forensic analyst at the University of North Texas Health Science

Center in Fort Worth, testified that she has a master’s degree in molecular biology,

attended continuing education in her field of expertise, wrote papers and made

presentations on the topic of DNA analysis, and had extensive on-the-job training.

She testified regarding the process she used to test the DNA evidence presented in

the case and the methodology she used to prepare the reports and reach her

conclusions. She stated that the methodology was consistent with procedures and

practices used in her field and routinely presented as evidence in court. Finally,

Smuts testified that the forensic laboratory where she works and where the DNA

tests for this case were conducted is accredited by Forensic Quality Services and

by the Texas Department of Public Safety and that the laboratory also meets the

applicable federal standards.

Thus, we conclude that the trial court did not err in determining under the

Kelly standard that Smuts’ testimony was grounded in accepted methods and

procedures of science and that the scientific theory underlying her testimony was

valid, her technique applying the theory was valid, and the technique was, in fact,

properly applied in this case. See Russeau, 171 S.W.3d at 881; Kelly, 824 S.W.2d

at 572. Appellant points out that Smuts’ laboratory was not accredited by the

American Association of Blood Banks; however, this fact is irrelevant given the

17
other evidence of reliability and validity of the theory and techniques Smuts

employed in this case.

In his twelfth issue, appellant also argues that the DNA evidence was

inadmissible because the State failed to establish the chain of custody for all three

DNA samples and had “fabricated DNA documentation” regarding DNA samples

taken from A.G. and her child. Appellant failed to object on this basis in the trial

court, so this issue is not preserved for consideration on appeal. See TEX. R. APP.

P. 33.1 (providing that specific objection before trial court is required to preserve

issue for review on appeal).

We overrule these issues.

Motion for Continuance

In his tenth and fourteenth issues, appellant argues that the trial court erred

in denying his motions for continuance because he needed more time to prepare his

case once the trial court ruled that he could proceed pro se.

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007).

Appellant must show that he was actually prejudiced by the denial of his motion.

See id. The record must show “with considerable specificity how the defendant

was harmed by the absence of more preparation time than he actually had.”

Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010); see also TEX.

18
CODE CRIM. PROC. ANN. art. 29.06 (Vernon 2006) (providing that when motion for

continuance is based on absent witness, defendant must show that he exercised

diligence to procure witness’s attendance, he has not consented to absence of

witness, and he is not making motion for delay, and he must set forth facts he

expects witness to prove).

Appellant filed two motions for continuance. One asserted that he required

more time to obtain his own DNA expert witness. The second asserted that he

needed more time to obtain the testimony of various Ben Taub employees, whom

he had subpoenaed the week before trial, and that he was surprised mid-trial by

receiving an additional sixty-seven pages of medical records regarding A.G.’s

pregnancy. Appellant has failed to demonstrate in the record “with considerable

specificity” how he was harmed by the absence of more preparation time. He

provided no evidence of what testimony he expected from the Ben Taub

employees, the specific facts he expected his DNA expert would prove, or how

more extensive medical records or more time to examine those produced would

have supported his cause. See Gonzales, 304 S.W.3d at 842; see also TEX. CODE

CRIM. PROC. ANN. art. 29.06 (providing showing required for motion for

continuance based on absent witness).

We conclude that the trial court did not abuse its discretion in denying

appellant’s motions for continuance.

19
 Appellant also argues that he was effectively denied the right to have his

own DNA expert witness, and, in his thirteenth issue, he argues that the denial of

his own DNA expert witness violated his Fourteenth Amendment rights. These

arguments are groundless, as the record demonstrates that the trial court granted

two motions allowing appellant to have an expert test the DNA. The record is

devoid of any evidence that appellant actually attempted to secure an expert before

trial, even though the trial court had granted both his request to have an expert test

the DNA and his request to appoint an investigator to help him obtain witnesses for

trial. See Nwosoucha v. State, 325 S.W.3d 816, 826–27 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (holding that appellant failed to show entitlement to

continuance where record was “devoid of any indication she attempted to secure

[the expert’s] presence” for trial).

In his sixteenth issue, appellant argues that he was “denied and impeded”

from obtaining evidence from or access to “Ben Taub medical staff.” However,

appellant does not assert any affirmative act of the trial court, other than the denial

of the motions for continuance, that prevented him from obtaining the evidence he

sought. As we have already discussed, the trial court granted his requests to

appoint an investigator and for DNA testing, and the trial court did not err in

denying appellant’s motions for continuance.

These issues are overruled.

20
 Motions for Mistrial and New Trial

In his eleventh issue, appellant argues that the trial court erred in denying his

motion for mistrial. He argues that he was entitled to a mistrial because Officer

Johnson “perjured herself regarding the collection of [his] DNA.”

We review motions for mistrial for an abuse of discretion. Hawkins v. State,

135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Although the State may not obtain a

conviction through the use of perjured testimony, 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). Discrepancies in testimony alone

do not establish perjury. Id. at 312.

Here, appellant complains that Officer Johnson perjured herself by testifying

that she collected appellant’s DNA and placed the swab in a white bag, when the

video of his DNA collection showed that Johnson put the swab into a clear plastic

bag. Other officers also testified that the DNA evidence was placed in a “clear”

bag. However, appellant has failed to show this discrepancy in testimony

amounted to perjury. See id. We conclude that the trial court did not abuse its

discretion in denying the motion for mistrial on this ground.

In his fifteenth issue, appellant argues that the trial court abused its

discretion in denying him the right to present and argue his pro se motion for new

trial. We construe this as an argument that the trial court erred in failing to hold a

21
hearing, as the record indicates that appellant was allowed to file, and did file, a

pro se motion for new trial asserting that the probable cause affidavit and

complaint were defective, that the trial court was biased for denying his motion for

continuance, that the prosecutors committed misconduct, that the jury charge was

invalid, that he was denied access to witnesses, and that Officer Johnson violated

his due process rights. Appellant did not present an affidavit or any other sworn

evidence with his motion for new trial.

A trial court abuses its discretion in failing to hold a hearing on a motion for

new trial when the motion and accompanying affidavits (1) raise matters that are

not determinable from the record and (2) establish reasonable grounds showing

that the defendant could potentially be entitled to relief. Hobbs v. State, 298

S.W.3d 193, 199 (Tex. Crim. App. 2009). Here, none of appellant’s issues raised

in his motion for new trial meet both prongs of this test, as they generally asserted

arguments that were determinable from evidence already contained in the trial

record, and he failed to support his motion for new trial with an affidavit

specifically setting out the factual basis for his claims. See id.; see also Smith v.

State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009) (holding that to establish

existence of reasonable grounds showing he could be entitled to relief defendant is

required to support his motion for new trial with affidavit, either of defendant or

someone else, specifically setting out factual basis for claim).

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 We overrule these issues.

Jury Charge

In his nineteenth issue, appellant argues that the jury charge was

unconstitutional because “the State used impossible dates of the alleged sexual

assault.” The jury charge, like the indictment, stated that appellant allegedly

committed the offense “on or about the 27th day of February, A.D., 2010.” As we

discussed above in our analysis of the sufficiency of the evidence, the “on or

about” language permitted the State to prove that the offense occurred on any date

prior to the presentment of the indictment and within the statutory limitations

period. See Sledge, 953 S.W.2d at 256. Thus, we conclude that the inclusion of

the “on or about” date in the jury charge did not constitute error in the jury charge.

See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (holding that, in

reviewing jury charge, we first determine whether error occurred; if no error

occurred, our analysis ends).

Appellant also argues generally that the “charge was an instrument of

oppressive oppression to defraud the jury.” This issue is waived for failure to

provide “a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.” See TEX. R. APP. P. 38.1(i).

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 Ineffective Assistance

In his twentieth issue, appellant argues that his former attorneys were

ineffective. The trial court appointed multiple attorneys to represent appellant in

the course of the underlying proceeding. Appellant proceeded to trial pro se, with

an appointed “stand-by” attorney. He argues that the attorneys who represented

him prior to trial withheld evidence and assisted the State in suppressing evidence.

Any allegation of ineffective assistance of counsel must be affirmatively supported

by the record. Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). The

record here contains no evidence that any of the attorneys who represented

appellant prior to trial withheld or suppressed evidence or acted in concert with the

State to do so. This issue is overruled. 3

3
Appellant also includes an “issue 22,” which he states was “raised supra” on page
thirty of his brief, and issues 23 and 24, for which he states only, “waive with
court.” Thus, we do not address these issues separately. See TEX. R. APP. P. 38.1.
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 Conclusion

We affirm the judgment of the trial court. All pending motions are

dismissed as moot.4

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).

4
Appellant also filed numerous motions in this case, asking that we take judicial
notice of various facts, asserting the application of various rules of procedure and
law, and seeking other rulings related to the prosecution of this appeal. We
considered all facts from the record and all arguments properly raised by the
parties that were necessary to determine the issues on appeal. See TEX. R. APP. P.
47.1.
25