IN THE

TENTH COURT OF APPEALS

No. 10-14-00112-CR

TEVIN SHERARD ELLIOTT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2012-1543-C2

MEMORANDUM OPINION

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

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

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

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

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

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

Jasmin protested. Elliott carried Jasmin to a muddy slope where Elliott sexually 
Elliott v. State Page 2

assaulted her. After putting their clothes back on, Elliott carried Jasmin to another part 

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

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

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

asserted that the sexual conduct was consensual.

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

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

appeal, the trial court’s judgments are affirmed.

SUFFICIENCY OF INDICTMENT

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

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

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

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

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

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

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

(b) If the defendant does not object to a defect, error, or irregularity of 

form or substance in an indictment or information before the date on 

which the trial on the merits commences, he waives and forfeits the right 

to object to the defect, error, or irregularity and he may not raise the 

objection on appeal or in any other postconviction proceeding. Nothing in 

this article prohibits a trial court from requiring that an objection to an 

indictment or information be made at an earlier time in compliance with 

Article 28.01 of this code.
Elliott v. State Page 3

TEX. CODE CRIM. PROC. art. 1.14 (West 2005).

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

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

whether the indictment is constitutionally sufficient before applying the waiver 

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

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

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

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

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

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

Crim. App. 2010).

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

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

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

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

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

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

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

 

1

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

indictment.
Elliott v. State Page 4

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

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

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

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

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

CHALLENGE TO VENIRE MEMBER

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

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

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

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

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

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

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

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

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

and specific challenge for cause; (2) he used a peremptory challenge on the complainedof venire member; (3) his peremptory challenges were exhausted; (4) his request for 

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

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

challenge at all is made to a juror, the issue of whether the juror is challengeable for 
Elliott v. State Page 5

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

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

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

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

disqualified from serving on the jury.”). 

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

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

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

PERJURED TESTIMONY

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

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

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

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

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

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

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

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

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

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

App. 1986). 
Elliott v. State Page 6

The knowing use of false testimony violates due process when there is a 

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

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

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

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

Trial Testimony

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

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

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

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

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

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

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

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

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

she had not.

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

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

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

 

2 This officer was not the officer who took Jasmin’s statement. The officer who took the statement was not 

asked whether he thought Jasmin was intoxicated.
Elliott v. State Page 7

twelve hours. She thought she had told the nurse that she had drank an alcoholic 

beverage within 12 hours prior to the exam. 

Motion for New Trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Application

This last statement by the prosecutor is what Elliott relies on to assert that the 
Elliott v. State Page 8

State knowingly presented perjured testimony. We disagree. Clearly, Jasmin had been 

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

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

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

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

Elliott’s fifth issue is overruled.

PRESERVATION OF COMPLAINTS

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

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

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

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

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

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

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

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

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

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

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

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

 

3 There was no explanation as to what the prosecutor meant by “drunk.”
Elliott v. State Page 9

regarding the statement. There were two discussions in chambers and off the record 

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

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

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

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

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

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

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

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

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

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

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

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

are overruled.

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

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

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

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

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

cross-examine witnesses was violated by the admission of a forensic DNA test report 
Elliott v. State Page 10

through an individual who did not prepare the report. Elliott did not object to the 

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

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

objection on hearsay grounds failed to preserve error on Confrontation Clause 

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

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

overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

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

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

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

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

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

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

counsel.

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

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

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

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

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. 
Elliott v. State Page 11

Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We review a trial judge's denial of a motion for new trial under an abuse of 
Elliott v. State Page 12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

171 (Tex. Crim. App. 2005).

Video Gap

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

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

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

Elliott’s benefit. Elliott only argued at the hearing on the motion for new trial, that 
Elliott v. State Page 13

because Jasmine’s statement indicated she and Elliott had sex in the pool area, the gap 

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

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

portion of the video not there. 

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

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

representation fell below an objective standard of reasonableness under the prevailing 

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

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

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

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

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

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

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

testimony or that would be beneficial for the defense. 

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

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

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

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

discretion in denying Elliott’s motion for new trial on this ground for ineffective 
Elliott v. State Page 14

assistance of counsel.

Decision to Testify

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

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

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

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

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

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

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

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

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

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

the trial and evidence was going. 

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

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

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

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

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

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

discretion in denying Elliott’s motion for new trial on this ground for ineffective 
Elliott v. State Page 15

assistance of counsel.

Failure to Cross Examine

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

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

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

adequately reflect the alleged failings of trial counsel. 

Other Grounds 

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

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

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

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

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

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

cannot say that counsel was ineffective on these grounds.

Elliott’s eleventh issue is overruled.

CONCLUSION

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

TOM GRAY

Chief Justice
Elliott v. State Page 16

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed April 23, 2015

Do not publish 

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