PD-0063-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/17/2015 11:39:57 PM
Accepted 2/19/2015 10:40:05 AM
ABEL ACOSTA
TO THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
PD-0063-15
_________________________________
RAYMOND BUCHANAN, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
On Petition for Discretionary Review from the Court of
Appeals for the First District, Houston, Texas in Cause No.
01-13-00954-CR, Affirming the Conviction in Cause No.
68872 from the 300th District Court of Brazoria County,
Texas.
_________________________________________________________
R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, Texas 77002
(713) 254-5629
(713) 224-2889 FAX
February 19, 2015
ShearerLegal@Yahoo.com
Attorney for Appellant
(on PDR only)
February 17, 2014
i
SUBJECT INDEX
Page
List of Authorities...................................................................................... iv
Names of All Parties.................................................................................. v
Statement Regarding Oral Argument........................................................... vi
Statement of the Case................................................................................ 2
Statement of the Procedural History of the Case......................................... 3
Ground for Review Number One............................................................... 4
GROUND FOR REVIEW NUMBER ONE: The court of appeals
erred by applying an incorrect standard of review. The panel erred by
misapplying this Court’s rule concerning harmless error found in
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Cr. App. 1999) and
Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr. App. 1986).
(Op. at 10)
Ground for Review Number Two.............................................................. 4
GROUND FOR REVIEW NUMBER TWO: The court of appeals
erred by holding that the admission of a portion of Appellant’s
recorded statement into evidence was harmless error. The admission
of evidence that Appellant smoked synthetic marijuana was too
dissimilar an act to prevent harm from the admission of Appellant’s
discussion with the officers concerning his prior work with the drug
enforcement administration. The complained of evidence had a
substantial and injurious affect and influence upon the jury’s verdict at
both the guilt and punishment stages.
(Op. at 10)
ii
Reasons for Review................................................................................... 4
Statement of facts………………………………………………………….. 5
Argument and Authorities.......................................................................... 9
Ground for Review Number Three............................................................. 12
GROUND FOR REVIEW NUMBER THREE: The court of
appeals plainly erred by holding that a video played for the jury was
relevant to sentencing where the video was seized from Appellant’s
cell phone without a warrant and was inadmissible under the new rule
announced in Riley v. California.
(Op. at 12)
Argument and Authorities.......................................................................... 12
Prayer for Relief........................................................................................ 16
Certificate of Service................................................................................. 17
APPENDIX - Copy of the opinion rendered by the court of appeals… 18
iii
LIST OF AUTHORITIES
Page
CASES
Anderson v. State, 717 S.W.2d 622 (Tex. Cr. App. 1986) ................................. 4, 10
Bowman v. State, No. 05-13-01741-CR (Tex. App. – Dallas, February 5, 2015, no
pet.) (unpublished) ................................................................................................14
Brooks v. State, 990 S.W.2d 278 (Tex. Cr. App. 1999) ..................................... 4, 10
Chung v. State, No. 10-13-00307-CR (Tex. App. – Waco, October 23, 2014, no
pet.) ........................................................................................................................15
Griffith v. Kentucky, 479 U.S. 314 (1987) ...............................................................14
Riley v. California, - - - U.S.=- - -, 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL
2864483 (2014) .............................................................................................. 12, 13
Shea v. Louisiana, 470 U. S. 51, 59 (1985) .............................................................14
State v. Granville, 423 S.W.3d 399 (Tex. Cr. App. 2014) ............................... 12, 13
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ...............14
RULES
TEX. R. APP. PROC. 38.1(a) .........................................................................................v
iv
NAMES OF ALL PARTIES
In accordance with TEX. R. APP. PROC. 38.1(a), Appellant submits that the
following are interested parties:
R. Scott Shearer - Attorney for Appellant (on PDR only).
917 Franklin, Suite 320
Houston, TX 77002
D. Craig Hughes - Attorney for Appellant (Trial & Appeal)
D. Craig Hughes
7322 Southwest Freeway, Suite 1100
Houston, Texas 77074
Raymond Buchanan - Appellant.
TDCJ #01893716
H.H. Coffield Unit
2661 FM 2054
Tennessee Colony, TX 75884
Jeri Yenne - Trial counsel for the State of Texas.
Jessica Pulcher
Leslie Sharp
Trey D. Picard - Appellate counsel for the State of Texas.
111 East Locust St., Suite 408A
Angleton, Texas 77515
Hon. K. Randall Hufstetler - Presiding judge of the Trial Court.
300th District Court
111 E. Locust, Room 401
Angleton, TX 77515
STATEMENT REGARDING ORAL ARGUMENT
v
Appellant believes oral argument will be helpful. Appellant requests oral
argument.
vi
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
PD-0063-15
_________________________________
RAYMOND BUCHANAN, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
On Petition for Discretionary Review from the Court of
Appeals for the First District, Houston, Texas in Cause No.
01-13-00954-CR, Affirming the Conviction in Cause No.
68872 from the 300th District Court of Brazoria County,
Texas.
_________________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
APPELLANT, RAYMOND BUCHANAN, JR., by and through his
counsel on appeal, files this Petition for Discretionary Review. In support of his
request for review, Appellant would respectfully show the Court the following:
1
STATEMENT OF THE CASE
Appellant was charged in a five (5) count indictment alleging sexual assault,
sexual assault of a child, sexual performance by a child, and with possession of
child pornography. Appellant pleaded not guilty and a jury trial ensued on October
15, 2013. Appellant was tried on three of the five counts of the indictment after the
trial court granted Appellant’s motion for severance. (RR II at 4-7). The jury
returned a guilty verdict on the offense of sexual assault of a child as charged in
Count II of the Indictment. See CR at 61. The jury found Appellant not guilty of
the remaining counts. (CR at 61, 64, 66). The jury assessed punishment at thirty-
five (35) years imprisonment in the Texas Department of Criminal Justice–
Institutional Division and assessed a fine in the amount of $10,000.00. (CR at 73).
Appellant gave timely notice of appeal. (CR at 67).
____________________________________________________
* The record on petition for discretionary review
is cited as follows:
CR at p .......... Clerk’s record at page p.
RR V at p .......... Reporter’s record volume V at page p.
Op. at p .......... Opinion at page p.
2
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
In an UNPUBLISHED opinion delivered December 16, 2014, a panel of the
First Court of Appeals AFFIRMED Appellant’s conviction for sexual assault of a
child. The Appellant did not file a motion for rehearing. The Appellant’s Petition
for Discretionary Review was due on January 15, 2015. Appellant filed a Motion
for Extension of Time to File Petition for Discretionary Review, which was
granted. Appellant’s Petition for Discretionary Review was due February 16,
2015. Because February 16 was a state holiday, Appellant’s Petition for
Discretionary Review is due February 17, 2015.
3
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE: The court of appeals erred by
applying an incorrect standard of review. The panel erred by misapplying this
Court’s rule concerning harmless error found in Brooks v. State, 990 S.W.2d 278,
287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr.
App. 1986).
(Op. at 10)
GROUND FOR REVIEW NUMBER TWO: The court of appeals erred by
holding that the admission of a portion of Appellant’s recorded statement into
evidence was harmless error. The admission of evidence that Appellant smoked
synthetic marijuana was too dissimilar an act to prevent harm from the admission
of Appellant’s discussion with the officers concerning his prior work with the drug
enforcement administration. The complained of evidence had a substantial and
injurious affect and influence upon the jury’s verdict at both the guilt and
punishment stages.
(Op. at 10)
Reasons for Review:
1. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of this Court on the same matter. The decision of the First
Court of Appeals is in conflict with this Court’s holdings in Brooks v. State, 990
S.W.2d 278, 287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627
(Tex. Cr. App. 1986).
2. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.
4
Statement of facts:
On October 4, 2011, at approximately 5:30 a.m. to 6:00 a.m., Pearland
Police officer Harry Hunt had just finished his shift and was headed home. (RR V
at 19). As he neared his residence, he noticed a young girl walking in circles who
was crying and appeared to be in some distress. (RR V at 19). She first identified
herself as being Tyeishia Anderson, and who gave a date of birth of April 20, 1993,
which would have made her approximately eighteen (18) and a half years old at
that time. (RR V at 25-26). When asked by Hunt what was wrong, she responded
to him with something along the lines indicating that she had been the victim of a
sexual assault. (RR V at 21-23). It was difficult for Officer Hunt to determine
exactly what had happened due to the fact that Ms. Anderson was very upset. (RR
V at 20). Believing that an investigation was necessary, Hunt called for an officer
who was on duty to respond to the scene. (RR V at 20). After the second officer
arrived, Ms. Anderson took him to a townhouse development in an unincorporated
section of Pearland where she claimed the sexual assault occurred. (RR V at 21-
22). It was later determined that Mr. Buchanan rented a townhome in that
development. (RR V at 147). Later that morning, Detective Jeff Dandeneau, an
investigator with the Brazoria County Sheriff’s Office, spoke with Ms. Anderson.
(RR V at 104-105). She was again identified as Tyeishia Anderson.
5
Ms. Anderson told him that she had been at a smoke shop in Houston where
she met an older male. (RR V at 29-30). She left with the man in his vehicle
thinking they were going to go somewhere in Houston and watch the Super Bowl
or some other football game. (RR V at 30). She stated that she became a little
nervous as they were driving because it was taking longer than she expected. (RR
V at 33). When she asked the male where he lived, he told her his residence was in
Pearland. She voluntarily continued with him to his residence. (RR V at 33-34).
Ms. Anderson stated that they smoked some fake marijuana. (RR V at 36-37).
After that, she stated that she could not remember what happened until she woke
up the next morning. (RR V at 42-43). She claimed that the male told her “you
have something good inside of you”, and that a piece of a condom came out of her
vagina after she urinated. (RR V at 44-45).
Detective Dandeneau then made arrangements to have a Sexual Assault
Nurse Exam (“SANE”) of Ms. Anderson done at Memorial Southeast Hospital in
Houston. (RR V at 105). On the drive to the hospital, Dandeneau questioned Ms.
Anderson about whether she had been prostituting. She denied that she had been.
As they were waiting for the SANE nurse to arrive, Ms. Anderson was asked to
give a written statement about what had happened. She then gave two written
statements and once again identified herself as being Tyeishia Anderson, with a
date of birth of April 20, 1993. After the SANE exam was completed, Ms.
6
Anderson was driven back to her home in southwest Houston. (RR V at 9).
Semen collected from M.K. during the SANE exam ultimately matched a DNA
sample taken from the Appellant under a search warrant. (RR V at 94-95)(RR VI
at 56).
While the SANE exam was taking place, law enforcement officers secured a
search warrant for Appellant’s residence at the townhouse development identified
by Ms. Anderson. (RR V at 80, 107-108). Upon arriving at the residence, they
called Appellant on his cell phone. Reaching his voice mail, the officers then
knocked on his door. (RR V at 108). After failing to reach Appellant on his cell
phone or getting an answer at the front door, officers made forced entry into the
residence. In the bedroom, they allegedly found fake marijuana and condoms.
(RR V at 112-113). As they were finishing their search, the officers walked into
the closet upstairs, and found Appellant Buchanan hiding in a closet. His cell
phone was beside the bed. (RR V at 112). He was immediately arrested. (RR V at
114).
Several days after the search of Appellant’s residence, Detective Dandeneau
went back to the residence in southwest Houston where he had previously dropped
off Ms. Anderson. (RR V at 118). She was not there, but another male and female
were present and they informed Dandeneau that her name was not Tyeishia
Anderson. (RR V at 121-122). They gave Dandeneau information about how to
7
get in touch with her. (RR V at 121-122, 155-156). They also informed
Dandeneau that they didn’t think she was over eighteen (18) years of age and that
they thought she was prostituting herself. (RR V at 121-122, 155-156). The
detective then made contact with Ms. Anderson and was told by her that she had
not provided her real name. She told Dandeneau that her real name was “M.K.”
and that her date of birth was actually August 11, 1995, making her sixteen (16)
years old at the time. (RR V at 124). “M.K.” identified the Appellant from a photo
spread. (RR V at 130). She also confirmed that she was a runaway from the Katy
area. (RR V at 157). When Dandeneau confronted her with his suspicion that she
was a prostitute, “M.K.” denied it. (RR V at 143). “M.K” told him that she went
to the smoke shop and tried to buy cigarettes. Because she was not old enough, the
store clerk refused to sell them to her. She also stated that she needed to earn
money, and that is when Appellant allegedly approached her. (RR V at 49-50).
She offered sex to him for money, but he refused. Because she didn't have
anything to do, she decided to go with him, even though he wasn’t going to pay her
for sex. (RR V at 63-64).
At trial, the State’s case rested primarily on the testimony of “M.K.”. She
testified to the alleged facts of the case, including her age at the time of the offense.
More specifically, she testified that she was born in Accra, Ghana, on August 11,
1995. Over objection from defense counsel, she repeatedly testified to hearsay
8
evidence, particularly her date of birth. There was no corroborating evidence
admitted to substantiate her testimony concerning her date of birth, such as a birth
certificate, or testimony from her mother or some other individual who was present
at her birth or had personal knowledge concerning same. All other testimony from
the officers who participated in the investigation concerning “M.K.’s” date of birth
was based solely on hearsay evidence from her. “M.K.” was unable to identify the
Appellant in court during her testimony. (RR V at 30).
During the punishment phase, the court admitted into evidence an unrelated
video found on Appellant’s phone which showed him having sexual intercourse
with an adult female. (RR VIII at 16)(State’s Exhibit 26A).
Argument and Authorities:
In its opinion of December 16, 2015, Appellant submits the panel fell into
error when it held that a portion of Appellant’s recorded statements to officers
concerning his work with the drug enforcement administration was harmless error.
(Op. at 10).
In his recorded statement to the police, Appellant detailed his work for the
drug enforcement administration. (Op. at 10). Appellant objected to the admission
of this portion of the recorded statement but his objection was overruled. (RR V at
9
190-191). Appellant urged this point on Appeal. The court of appeals held as
follows:
Buchanan also complains the trial court admitted the portion of his
recorded statement in which he mentioned working with the DEA.
He contends that it improperly left the jury with the impression that
he was involved in narcotics activity. To the extent that the trial
court’s admission of this statement created such an impression with
the jury, we conclude it too was harmless in light of M.K.’s
unobjected-to testimony that she and Buchanan smoked synthetic
marijuana together.
(Op. at 10).
The Court of Appeals cites this Court’s decisions in Brooks v. State, 990
S.W.2d 278, 287 (Tex. Cr. App. 1999) and Anderson v. State, 717 S.W.2d 622, 627
(Tex. Cr. App. 1986) for the proposition that the admission of evidence sufficiently
similar to the challenged evidence makes any error in admitting the challenged
evidence harmless. Brooks and Anderson do say as much. The improper
admission of one piece of evidence is deemed harmless error when another same or
similar piece of evidence comes in properly or without objection. See Brooks v.
State, 990 S.W.2d 278, 287 (Tex. Cr. App. 1999) (“any error in admitting the
evidence was harmless in light of other properly admitted evidence proving the
same fact.”) and Anderson v. State, 717 S.W.2d 622, 627 (Tex. Cr. App. 1986) (“If
1
the fact to which the hearsay relates is sufficiently proved by other competent and
unobjected to evidence . . . admission of the hearsay is properly deemed harmless
and does not constitute reversible error.”).
In the present case, however, the court of appeals attempts to equate the
smoking of synthetic marijuana with major drug dealing. The two acts are
completely dissimilar. One involves the smoking of a legal 1 substance for personal
use, the other concerns federal drug dealing, usually in large quantities of what
most people would consider to be hard core drugs. These acts are simply not the
same. While the rule of Brooks and Anderson justify a finding of harmless error
when comparing the admission of apples to apples, the rule does not support a
finding of harmless error when comparing the admission of apples to oranges.
This evidence had a substantial and injurious affect and influence upon the
jury’s verdict at both the guilt and punishment stages. Appellant was unfairly
convicted based upon character conformity rather than the facts of the case. The
State’s case was weak, as it involved an admitted prostitute who gave conflicting
statements to the police about her age. Moreover, Appellant was found not guilty
on the other two counts. Under these circumstances, the admission of this
evidence was harmful and the court of appeals erred by finding otherwise.
1
GROUND FOR REVIEW NUMBER THREE: The court of
appeals plainly erred by holding that a video played for the jury was
relevant to sentencing where the video was seized from Appellant’s
cell phone without a warrant and was inadmissible under the new rule
announced in Riley v. California.
(Op. at 12)
Reasons for Review:
1. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of the United States Supreme Court on the same matter. The
decision of the First Court of Appeals is in conflict with the court’s holding in
Riley v. California, U.S., 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL 2864483
(2014).
2. The panel decision of the First Court of Appeals requires review because the
court decided an important question of state law that that is in conflict with the
applicable decisions of this Court on the same matter. The decision of the First
Court of Appeals is in conflict with this Court’s holding in State v. Granville, 423
S.W.3d 399, 417 (Tex. Cr. App. 2014).
3. The panel decision of the Court of Appeals requires review because the court
of appeals has decided an important question of state law, which has not been, but
should be settled by this Court.
Argument and Authorities:
1
At the time of the offense synthetic marijuana was most likely legal as it had yet
1
The most damaging and prejudicial evidence that was admitted during the
punishment phase was State’s Exhibit 26. (RR VIII at 16). This evidence was a
video downloaded from Appellant’s cell phone which depicted him having sexual
intercourse with another adult woman. 2
While this appeal was pending, the United States Supreme Court decided
Riley v. California, - - - U.S. - - -, 134 S.Ct. 2473, 189 L.Ed.2d 430, 2014 WL
2864483 (2014). In Riley, the Court held that the police must obtain a warrant
before searching the contents of a cell phone seized incident to an arrest. 134 S.Ct.
2473, 189 L.Ed.2d 430, Id. WL at *20; cf. State v. Granville, 423 S.W.3d 399, 417
(Tex. Cr. App. 2014) (holding “a citizen does not lose his reasonable expectation
of privacy in the contents of his cell phone merely because that cell phone is being
stored in a jail property room.”). The Supreme Court concluded that the search of
the cell phones did not fit within the parameters of the “search incident to arrest”
and it held that a “warrant is generally required before such a search, even when a
cell phone is seized incident to arrest.’ Id. at 2493.
to be proscribed by statute.
2
Appellant filed a motion to suppress evidence (CR at 8) and a motion to suppress
his oral statements. (CR at 11). Appellant’s motion to suppress oral statements
was granted in part and denied in part. (CR at 84) (RR V at 193-195). There is
nothing in the record showing whether his motion to suppress evidence was ever
ruled upon.
1
The Riley court announced a new rule for criminal prosecutions. Bowman v.
State, No. 05-13-01741-CR (Tex. App. – Dallas, February 5, 2015, no pet.)
(unpublished) (“Bowman’s convictions are not final, therefore Riley applies
retroactively.”).
A new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet final.
In Griffith v. Kentucky, 479 U.S. 314 (1987) the Supreme Court held that the
failure to apply a newly declared constitutional rule to criminal cases pending on
direct review violates basic norms of constitutional adjudication. Griffith, 479 U.S.
at 322. The “integrity of judicial review” requires the application of the new rule
to ‘all similar cases pending on direct review.” Griffith, 479 U.S. at 323. A new
rule for the conduct of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final, with no exception
for cases in which the new rule constitutes a “clear break’ with the past. Griffith,
479 U.S. at 328.
In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
the Court established the terms under which its decisions in criminal cases will
apply retroactively. Generally, a new constitutional rule of criminal procedure will
apply to cases still pending on direct review but not to cases that have become final
before the new rules are announced. This analysis has been applied in the Fourth
1
Amendment context. See Shea v. Louisiana, 470 U. S. 51, 59 (1985) (the Fifth
Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which
prohibited the use, after a suspect had requested counsel, of a confession obtained
by police-instigated interrogation without the suspect’s attorney’s being present,
was retroactive to cases on direct review when Edwards was decided. Court held
that there was nothing about a Fourth Amendment rule that suggested it should be
given greater retroactive effect than a Fifth Amendment rule).
The United States Supreme Court decided Riley while Appellant’s appeal
was pending. Thus, the court of appeals plainly erred by holding that the cell
phone video was relevant to Appellant’s sentencing. The case should have been
reversed to allow Appellant to invoke the new rule announced by Riley. The
illegally seized cell phone video had an enormous impact upon Appellant’s
sentence. It cannot be said beyond a reasonable doubt that the admission of this
improperly seized evidence did not contribute to Appellant’s punishment. See
Chung v. State, No. 10-13-00307-CR (Tex. App. – Waco, October 23, 2014, no
pet.).
1
PRAYER FOR RELIEF
FOR THESE REASONS, Appellant respectfully asks this Court to grant
review of the decision of the court of appeals. Appellant further prays that this
Court will reverse the judgment of the court of appeals.
Respectfully submitted,
By: /s/ R. SCOTT SHEARER
R. Scott Shearer
TBA No. 00786464
917 Franklin, Suite 320
Houston, Texas 77002
(713) 254-5629
(713) 224-2889 FAX
ShearerLegal@Yahoo.com
Attorney for Appellant
(on PDR only)
February 17, 2015
1
CERTIFICATE OF SERVICE
I certify that a copy of this Petition for Discretionary Review has been
served upon the State of Texas by e-mailing a copy of same to the following
parties at their respective addresses on this the 17th day of February, 2015:
TREY D. PICARD, A.D.A.
111 EAST LOCUST ST., SUITE 408A
ANGLETON, TEXAS 77515
TREYP@BRAZORIA-COUNTY.COM
LISA C. MCMINN
STATE PROSECUTING ATTORNEY
209 W. 14TH STREET
AUSTIN, TEXAS 78701
/s/ R. SCOTT SHEARER
R. Scott Shearer
1
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)
Certificate of Compliance with Type-Volume Limitations
and Typeface Requirements.
1. This Petition for Discretionary Review complies with the type-volume
limitation of TEX. R. APP. PROC. 9.4(i)(2)(D) and (3) because:
This Petition for Discretionary Review contains 2,861
words, excluding the parts of the Petition for
Discretionary Review exempted by TEX. R. APP. PROC.
9.4(i)(1).
2. This Petition for Discretionary Review complies with the typeface
requirements of TEX. R. APP. PROC. 9.4(e) because:
this Petition for Discretionary Review has been prepared
in a conventional proportionally spaced typeface using
Microsoft WORD 97 version 7.0 in Times New Roman
14 point type.
/s/R. SCOTT SHEARER
R. Scott Shearer
1
APPENDIX
1
Opinion issued December 16, 2014
In The
Court of Appeals
For The
First District of Texas
NO. 01-13-00954-CR
RAYMOND BUCHANAN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 68872
MEMORANDUM OPINION
A jury found Appellant Raymond Buchanan, Jr. guilty of sexual assault of a
child and sentenced him to 35 years’ confinement. In two issues, Buchanan
contends that (1) there was insufficient evidence to prove that the complainant
M.K. was under the age of 17 at the time of the offense and (2) the trial court
abused its discretion in admitting extraneous-offense evidence. We affirm.
Background
M.K. testified that as she left a smoke shop in Houston, a man, later
identified as Buchanan, asked if she wanted to go to his house to watch football.
M.K. agreed and testified that once they arrived, they smoked synthetic marijuana
and watched football.
M.K. testified that after smoking the synthetic marijuana, she was unable to
control herself and needed help walking up the stairs. She fell asleep in the
upstairs game room, and the next thing that she remembered was waking up in
Buchanan’s bed the next morning with her underwear missing. M.K. testified that
Buchanan told her that he had sexual intercourse with her and that there was a
“surprise inside of her.” When she went to the restroom she found a condom
inside her vagina. M.K. asked Buchanan to take her home, and after he dropped
her off at a gas station, she flagged down Sergeant H. Hunt of the Pearland Police
Department.
M.K. initially gave police a fake name and birthdate because she was a
runaway and “scared.” But she later admitted that she was under the age of 17 and
that she was actually born on August 11, 1995. The trial court admitted M.K.’s
Texas Identification Card, which corroborated this.
2
Sergeant J. Dandeneau of the Brazoria County Sheriff’s Office also testified.
A week after the assault, M.K. told him that her actual date of birth was August 11,
1995, and that she was 16 years old at the time of the assault. Dandeneau testified
that, during his investigation, he discovered sexually explicit photographs of M.K.
on Buchanan’s cell phone. M.K. told Dandeneau that she did not consent to
Buchanan photographing her, and M.K. also testified that she did not consent to
the photographs.
Dandeneau also found several plastic bags of synthetic marijuana, or
“Kush,” in Buchanan’s home. Deputy J. Gentry of the Brazoria County Sheriff’s
Department ID Division testified that he took photographs of several bags of Kush
found in Buchanan’s house.
Tammy Bires, a forensic scientist in the DNA Section of the Department of
Public Safety, also testified. Bires told the jury that Buchanan’s DNA sample
matched the semen taken from M.K.’s body.
The trial court admitted a video recording of Buchanan’s oral statements
during his custodial interrogation in which Buchanan discussed working with the
Drug Enforcement Agency and using synthetic marijuana.
During the punishment phase of the trial, the trial court admitted State’s
Exhibit 26A, a sexually explicit video lasting approximately 20 minutes. The
video showed Buchanan engaging in sexual intercourse with an adult woman, A.B.
3
A.B. testified in the punishment phase. She told the jury that State’s Exhibit
26A depicts her repeatedly telling Buchanan to stop having intercourse with her.
A.B. had no recollection of the incident and testified that she was incoherent
during the video. She testified that she had consumed a large quantity of alcohol
and that she did not consent to having sex with Buchanan or to having him record
it. She testified that towards the end of the recording she began “waking up and
realizing what’s going on.” A.B. asked Buchanan to stop more than ten times, and
he did not.
Sufficiency of the Evidence
A. Standard of Review
We review evidentiary sufficiency challenges under the Jackson v. Virginia
standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove,
beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781 (1979)). Under this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
4
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We do not resolve any conflict of fact, weigh any evidence, or evaluate the
credibility of any witnesses, as this is the function of the trier of fact. See
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore
resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s
credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625
(Tex. Crim. App. 2006).
B. Applicable Law
“A person commits [sexual assault of a child] 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) (West 2011). For purposes of
section 22.011, a child is “a person younger than 17 years of age.” Id.
§ 22.011(c)(1).
C. Analysis
Buchanan challenges the sufficiency of the evidence to prove that M.K. was
under the age of 17 at the time of the assault. According to Buchanan, “the only
evidence admitted to prove the age of [M.K.] was her uncorroborated hearsay
5
testimony concerning her date of birth, along with the hearsay testimony of law
enforcement officers which was based solely on hearsay statements made by
[M.K.].”
“[T]he testimony of the complainant as to her age and birth date [is]
sufficient to prove that she was under the age of seventeen at the time of the
offense.” Perez-Del Rio v. State, No. 14-04-00963-CR, 2006 WL 561887, at *3
(Tex. App.—Houston [14th Dist.] Mar. 2, 2006, pet. ref’d) (mem. op., not
designated for publication). Thus, M.K.’s testimony that she was 16 at the time of
the offense was sufficient to prove that she was under 17 at the time. See id.; see
generally Jason v. State, 589 S.W.2d 447, 449 (Tex. Crim. App. 1979) (same); see
also TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014) (providing that
testimony of child under 17 alone is sufficient to convict defendant of sexual
assault of a child). Buchanan challenges M.K.’s testimony about her birthdate as
hearsay because, according to him, it was not based on her personal knowledge,
but instead on what she learned from hearsay statements or looking at hearsay
documents. Whether M.K.’s testimony was hearsay does not change our analysis
because we consider both properly and improperly admitted evidence in a
sufficiency challenge. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013) (reviewing court considers all admitted evidence, regardless of whether
6
properly or improperly admitted, when reviewing sufficiency of evidence); Powell
v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (same).
Second, Buchanan contends that the evidence is insufficient because M.K.
was not credible. In support, Buchanan correctly points out that M.K. initially lied
to the police about her name and age. But the credibility of M.K.’s testimony was
a factor for the jury to consider in weighing the evidence, and we defer to the
jury’s resolution of the conflicting evidence. See Lancon v. State, 253 S.W.3d 699,
705 (Tex. Crim. App. 2008) (we afford almost complete deference to jury’s
determinations of credibility); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000) (appellate courts resolve any inconsistencies in the evidence in favor of
the verdict).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have found that Buchanan intentionally or knowingly
penetrated M.K.’s sexual organ by Buchanan’s sexual organ, that M.K. was under
17, and that M.K. was not Buchanan’s spouse. Accordingly, we hold that the
evidence was legally sufficient to support the judgment.
We overrule Buchanan’s first issue.
Evidentiary Rulings in Guilt-Innocence Phase
Buchanan contends that the trial court abused its discretion by admitting four
pieces of evidence: (1) a photograph of a bag of synthetic marijuana, (2) officers’
7
testimony that they found synthetic marijuana in Buchanan’s home,
(3) Buchanan’s admission during a police interrogation that he used synthetic
marijuana, and (4) Buchanan’s statement during an interrogation that he worked
with the DEA.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on admissibility under an abuse of discretion
standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We
will not reverse a trial court’s ruling on evidentiary matters unless the decision was
outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d
787, 790 (Tex. Crim. App. 2007). If the trial court’s ruling can be justified on any
theory of law applicable to that ruling, the ruling will not be disturbed. De La Paz,
279 S.W.3d at 344 (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App.
1982) (“When a trial court’s ruling on the admission of evidence is correct,
although giving a wrong or insufficient reason, this Court will not reverse if the
evidence is admissible for any reason.”)).
Even if a trial court errs by improperly admitting evidence, reversal is
warranted only if the appellant demonstrates that the erroneous admission of this
evidence affected his substantial rights. TEX. R. APP. P. 44.2(b). A substantial
right is affected when the error had a substantial and injurious effect or influence
on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
8
We review the record as a whole to determine whether the error had a substantial
influence on the jury’s verdict. Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim.
App. 1998).
“‘It is well established that the improper admission of evidence does not
constitute reversible error if the same facts are shown by other evidence which is
not challenged.’” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)
(quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)). Thus,
the improper admission of evidence is harmless if the same or similar evidence is
admitted without objection at another point in the trial. See id.
B. Analysis
Three of Buchanan’s evidentiary challenges relate to evidence that there was
synthetic marijuana in his house. We conclude that even if it was error to admit
this evidence, the error would not warrant reversal.
Buchanan did not object when M.K. testified that Buchanan had synthetic
marijuana in his house and that they smoked it together. Buchanan did object
when the State later offered a photograph of the synthetic marijuana found in
Buchanan’s house, two officers’ testimony about finding synthetic marijuana in
Buchanan’s home, and a video in which Buchanan admits smoking synthetic
marijuana. We conclude that the import of the challenged evidence was that it
showed that Buchanan smoked synthetic marijuana. Because M.K.’s earlier
9
unobjected-to testimony that she and Buchanan smoked synthetic marijuana
together at his home was sufficiently similar to the challenged evidence, any error
in admitting the challenged evidence was harmless. See Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc) (improper admission of
evidence does not constitute reversible error and is properly deemed harmless if
same or similar facts are proved by other properly admitted evidence); Anderson v.
State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (en banc) (same).
Buchanan also complains the trial court admitted the portion of his recorded
statement in which he mentioned working with the DEA. He contends that it
improperly left the jury with the impression that he was involved in narcotics
activity. To the extent that the trial court’s admission of this statement created
such an impression with the jury, we conclude it too was harmless in light of
M.K.’s unobjected-to testimony that she and Buchanan smoked synthetic
marijuana together. See Brooks, 990 S.W.2d at 287.
Punishment Phase Video
During the punishment phase of trial, evidence may be offered of any matter
the court deems relevant to sentencing, including the prior criminal record of the
defendant and any extraneous crime or bad act regardless of whether he has
previously been charged with or finally convicted of the crime or act,
notwithstanding Rules 404 and 405 of the Texas Rules of Evidence. See TEX.
10
CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West Supp. 2014); see also Erazo v.
State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). “[R]elevance during the
punishment phase of a non-capital trial is determined by what is helpful to the
jury.” Erazo, 144 S.W.3d at 491 (emphasis in original).
Extraneous offense evidence is offered during the punishment phase to assist
the jury in determining punishment. See Ellison v. State, 201 S.W.3d 714, 719
(Tex. Crim. App. 2006). But evidence may still be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403;
see Rogers v. State, 991 S.W.2d 263, 266–67 (Tex. Crim. App. 1999) (en banc)
(even if punishment evidence is otherwise admissible under article 37.07, it may be
excludable under Rule 403). We review a trial court’s decision to admit
punishment evidence under an abuse-of-discretion standard. Davis v. State, 329
S.W.3d 798, 803 (Tex. Crim. App. 2010).
Buchanan argues that the trial court abused its discretion by admitting a
video 1 of him having sexual intercourse with A.B. He contends that the video was
not relevant and that it was admitted in violation of Rules 403 and 404(b).
1
Buchanan complains about the trial court’s admission of Exhibit 26. Exhibit 26
contained a video clip of A.B. and a clip of another unidentified woman. Because
the trial court admitted only the video clip of A.B. and Buchanan engaging in
sexual intercourse, as Exhibit 26A, we construe Buchanan’s argument regarding
Exhibit 26 as a challenge to the admission of the video of A.B.
11
We conclude that the video’s admission was not an abuse of discretion.
First, the video was relevant in that it informed the jury of Buchanan’s character
and provided helpful information for the jury to assess an appropriate sentence.
See Erazo, 144 S.W.3d at 491 (relevance during the punishment phase is
determined by what is helpful to the jury). The fact that the video depicts
Buchanan having sex with A.B. without her consent and while she was
incognizant—circumstances similar to those of the charged offense—makes it
relevant because it is probative of Buchanan’s character and established a pattern
of conduct that may have informed the jury’s decision. See Sanders v. State, 422
S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d) (evidence relating to
sexual offense with child relevant because helped define appellant’s character,
showed another example of criminal act, and helped establish pattern of criminal
conduct that may have informed jury’s decision).
The video was also admissible despite Buchanan’s Rule 403 objection. See
Gigliobianco v. State, 210 S.W.3d 637, 641–42, n.8 (Tex. Crim. App. 2006)
(describing 4-factor balancing test). Here, the video was highly probative of
Buchanan’s character and thus helpful to the jury’s task of tailoring an appropriate
sentence. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1); Erazo, 144
S.W.3d at 491. The fact that the video would likely raise emotional responses in
the jury does not in itself demonstrate that it would impress the jury in some
12
irrational way, and Buchanan fails to argue how it may have done so. The time
needed to develop the evidence was not significant: the jury viewed the 20-minute
video once during the five-day trial. We thus conclude that the video’s probative
value was not substantially outweighed by the danger of unfair prejudice. See TEX.
R. EVID. 403. Accordingly, we hold that the trial court did not abuse its discretion
in admitting the video. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (providing for
admission of any matter trial court deems relevant to sentencing); Casey v. State,
215 S.W.3d 870, 884 (Tex. Crim. App. 2007) (no abuse of discretion in admitting
photographs of unconscious women having sexual act performed on them in case
where complainant was drugged and unconscious during sexual assault).
We overrule Buchanan’s second issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
13