IN THE COURT OF CRIMINAL APPEALS 

FOR THE STATE OF TEXAS 

AUSTIN, TEXAS 

TEVIN SHERARD ELLIOTT, § 

Petitioner § 

§ 

§ 

vs. § NO. 

§ 

§ 

THE STATE OF TEXAS, § 

Respondent § 

*************** * 

PETITION FOR DISCRETIONARY REVIEW 

OF THE COURT OF APPEALS FOR THE 

TENTH DISTRICT OF TEXAS 

NUMBER 10-14-00112-CR 

*************** * 

WILLIAM A. BRATTON, III 

Attorney at Law 

One Quadrangle Tower 

2828 Routh St., Suite 675 

Dallas, Texas 75201 

(214) 871-1133 office 

(214) 871-0620 fax 

State Bar No. 02916300 

Email - bill@brattonlaw.com 

ATTORNEY FOR PETITIONER 

(ON APPEAL ONLY) 

PD-0805-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/8/2015 12:59:32 PM

Accepted 7/9/2015 4:22:28 PM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS 

Page 

INDEX OF AUTHORITIES -iiiCERTIFICATE OF INTERESTED PERSONS 2 

STATEMENT REGARDING ORAL ARGUMENT 3 

STATEMENT OF THE CASE 4 

STATEMENT OF PROCEDURAL HISTORY 13 

GROUNDS FOR REVIEW 13 

REASON FOR REVIEW 1 14 

The Court of Appeals' decision incorrectly upheld the conviction 

of Petitioner by holding that the Petitioner was not denied his 

Sixth Amendment Right to effective assistance of counsel at trial. 

REASON FOR REVIEW II 19 

The Court of Appeals' decision incorrectly upheld the conviction of 

Petitioner by holding that the State did not present perjured 

testimony through Jasmin Hernandez regarding her state of 

sobriety during the events alleged in the Indictment. 

PRAYER 21 

CERTIFICATE OF SERVICE 22 

PETITION FOR DISCRETIONARY REVIEW - i i 
INDEX OF AUTHORITIES 

CASES: 

Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) 17, 19 

Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) 17, 19 

Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) 17, 19 

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) 13 

Johnston v. State, 145 S.W.3d 215 (Tex.Crim.App. 2004) 16 

Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012) 15 

Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013) 13 

Strickland v. Washington, 466 U.S. 668 (1984) 13, 15, 16 

STATUTES: 

Tex. R. App. Proc. 39.1 3 

Tex. R. App. Proc. 66.3(b) and (c) 17 

Tex. R. Aapp. Proc. 66.3(c) and (f) 13 

Tex. R. Evid. 404(b) 16 

Tex. R. Evid. 401 16 

Tex.R.Evid. 403 16 

PETITION FOR DISCRETIONARY REVIEW - ii i 
IN THE COURT OF CRIMINAL APPEALS 

FOR THE STATE OF TEXAS 

AUSTIN, TEXAS 

TEVIN SHERARD ELLIOTT, 

Petitioner 

vs. § NO. 

§ 

§ 

THE STATE OF TEXAS, § 

Respondent § 

*************** * 

PETITION FOR DISCRETIONARY REVIEW 

OF THE COURT OF APPEALS FOR THE 

TENTH DISTRICT OF TEXAS 

NUMBER 10-14-00112-CR 

*************** * 

TO THE HONORABLE JUDGES OF SAID COURT: 

NOW COMES TEVIN SHERARD ELLIOTT, Petitioner herein and 

respectfully petitions the Honorable Court to review the Opinion of the Court 

of Appeals for the Tenth District of Texas at Waco. 
CERTIFICATE OF INTERESTED PERSONS 

The undersigned Counsel of Record certifies that the following listed 

persons have an interest in the outcome of this case. These representations 

are made in order that the Court may evaluate possible disqualification or 

recusal. 

District Judge Honorable Matt Johnson 

54th Judicial District Judge 

Defendant/Petitioner Tevin Sherard Elliott 

Appeal Attorney for Petitioner William A. Bratton, Dallas 

Trial Attorney for Petitioner Jason Darling, Waco 

McLennan County, Texas 

Trial Attorney for the State ADA Hilary LaBorde, Waco 

ADA Robert Moody, Waco 

Appeal Attorney for State DA Abel Reyna, Waco 

Sterling Harmon, Waco 

PETITION FOR DISCRETIONARY REVIEW - 2 
ST A TEMENT REGARDING ORAL ARGUMENT 

Texas Rule of Appellate Procedure 39.1 states: 

A party who has filed a brief and who has timely requested oral 

argument may argue the case to the court unless the court, after examining 

the briefs, decides that oral argument is unnecessary for any of the following 

reasons: 

(a) the appeal is frivolous; 

(b) the dispositive issue or issues have been authoritatively 

decided; 

(c) the facts and legal arguments are adequately presented in the 

briefs and record; or 

(d) the decisional process would not be significantly aided by 

oral argument. 

Petitioner would urge the court that none of the reasons to deny oral 

argument set forth in Tex. R. App. Proc. 39.1 apply to the instant appeal. 

The factual issues in the appeal, as applied to the legal standards, are 

complicated and oral argument would assist the court in its decisional 

process. Particularly, Ground for Review I, relating to the denial of effective 

assistance of counsel. The Ground for Review requires a complete 

consideration of the trial strategy, as well as Petitioner's Points of Error I -

IV and VI - X in Petitioner's Appellant's Brief as they relate to the conduct 

of the defense of Petitioner. 

PETITION FOR DISCRETIONARY REVIEW - 3 
STA TEMENT OF THE CASE 

Evidence for the State: 

Jasmin Hernandez testified that she was the "Jane Doe" alleged in the 

Indictment pending against the Petitioner. (R.R.IV 29). In the spring of 

2012, Ms. Hernandez was a second semester freshman at Baylor living in 

Waco. (R.R.IV30). 

On April 14, 2012, a friend of Ms. Hernandez who lived in the dorm 

with her invited her to go to a party. (R.R.IV 39). Ms. Hernandez did not 

remember the name of the apartment complex but Ms. Hernandez rode to the 

party with another friend by the name of Shannon. (R.R.IV 41). When she 

arrived at the party, everyone was "just socializing". (R.R.IV 41). While at 

the party, Ms. Hernandez testified that she had "maybe 2 cups" of a punch 

and a "shot of vodka". (R.R.IV 42). She was introduced to her friend 

Catrina's boyfriend, the Petitioner. (R.R.IV 42). All of the girls who went 

with Ms. Hernandez had their pictures made with the Petitioner. (R.R.IV 

42). 

Later in the evening, after Ms. Hernandez had gone to the bathroom, 

she came out and didn't see any of her friends. (R.R.IV 47). The Petitioner 

was nearby and offered to help Ms. Hernandez look for her friends. (R.R.IV 

47). They began looking inside the apartment, when Ms. Hernandez 

PETITION FOR DISCRETIONARY REVIEW - 4 
testified the Petitioner offered to take her outside and look for them. 

(R.R.IV 48). The Petitioner was "more guiding and leading" Ms. Hernandez 

outside. (R.R.IV 49). Ms. Hernandez testified that she would not have gone 

outside but for the Petitioner leading her outside. (R.R.IV 49). 

After they went out the front door, there were other people outside, 

but Ms. Hernandez and the Petitioner kept walking further from them. 

(R.R.IV 50). The Petitioner then picked Ms. Hernandez up and carried her 

across the street to a closed area. (R.R.IV 50-52). The Petitioner had taken 

her to a recreational shack and then put her on the ground outside of the 

shack. (R.R.IV 52). Ms. Hernandez testified that the Petitioner took down 

her pants. (R.R.IV 52). Ms. Hernandez was shouting out "I'm gay. I'm 

gay." and to take her back to the party she needed to see her friends. 

(R.R.IV 54). 

Ms. Hernandez then testified that the Petitioner began having sex 

wherein his penis penetrated her vagina. (R.R.IV 59). When the Petitioner 

finished he then allowed her to get up and put herself together. (R.R.IV 62). 

The Petitioner then led her to the swimming pool area where he again pulled 

down her pants and penetrated her while he pressed her against a fence. 

(R.R.IV 62). 

PETITION FOR DISCRETIONARY REVIEW - 5 
After the Petitioner finished, Ms. Hernandez testified that he was 

ready to go and she stated she couldn't find her shirt. (R.R.IV 65). The 

Petitioner then looked around and found her shirt and then they returned to 

the party. (R.R.IV 65). 

After Ms. Hernandez returned to the party she told her friends that she 

had been "raped" and her friend Shannon took her straight from the party to 

the hospital. (R.R.IV 70). 

At the Hillcrest Hospital, Michele Davis, who was director of the 

Sexual Assault Nurse Examiner Program, conducted a sexual assault 

examination on Ms. Hernandez. (R.R.III 56-61). During the course of the 

examination, Ms. Davis obtained information from Ms. Hernandez which 

she wrote verbatim into her report. (R.R.III 72). She also noted any injuries 

which she found in her report and collected evidence. (R.R.III 63-65). 

Bradley Skaggs, a patrol officer with the Waco Police Department 

received a call to check with a patient at Hillcrest Hospital on April 15, 

2012. (R.R.III 25-27). The individual which he met was Jasmin Hernandez. 

(R.R.III 27). 

When Officer Skaggs met with Ms. Hernandez, she seemed kind of 

upset and had mud on her. (R.R.III 27). Officer Skaggs also believed that 

she had been drinking previous to his encounter with her. (R.R.III 27). 

PETITION FOR DISCRETIONARY REVIEW - 6 
Ms. Hernandez advised Officer Skaggs that she was at the Aspen 

Heights Apartment and briefly told the officer that she had been assaulted 

behind the building that was beside a volleyball court. (R.R.III 32). She 

gave a description that had a picket fence around the deck behind the 

building. (R.RIII 32). She also mentioned a swimming pool right there also 

and a walkway between the volleyball court and this building. (R.R.III 32-

33). 

Officer Skaggs left the hospital and went over to the area described to 

him by Ms. Hernandez and found a camouflage-looking iPod and an earring 

in the mud. (RR.III 33). 

Lesley Johnson, a scientist with the Texas Department of Public 

Safety Crime Laboratory in Waco performed test looking for evidence of 

biological material that could contain DNA that could compare to a known 

profile from a suspect or victim on items submitted to her. (RR.IV 11-12). 

Ms. Johnson was not the chemist who actually tested the DNA in the case 

that was performed by Erin Casmus. (RR.IV 12). Tests were run on a 

vaginal swab, anal swab, oral swab, known sample of Appellant, known 

sample of Ms. Hernandez, an earring and some panties. (R.R.IV 12-18). 

The presumptive test was negative on the vaginal swab and the 

panties. (R.R.IV 15). The earring was also tested and no profile was 

PETITION FOR DISCRETIONARY REVIEW - 7 
obtained. (R.R.IV 18). On the anal swab, there was a mixture of the victim 

and one unknown person on the DNA. (R.R.IV 21). A test of the 

Appellant's known sample and the unknown DNA resulted in the fact that 

the Appellant could not be excluded. (R.R.IV 23). 

Shannon Valverde, drove a car which took Ms. Hernandez to the party 

on April 14, 2012. (R.R.IV 110). At the party, Ms. Valverde was briefly 

introduced to the Petitioner by her friend "Cat". (R.R.IV 111). At one 

point, Ms. Valverde and Ms. Hernandez left the party. (R.R.IV 112). They 

later came back because they got a call from "Cat" that they had lost 

Christina and they wanted her to come back and help them find her. (R.R.IV 

113). Ms. Valverde couldn't remember how long they were looking for 

Christina, but they finally found her. (R.R.IV 113). After they found 

Christina, Ms. Valverde saw Ms. Hernandez around the fence area closed to 

where she had parked her car. (R.R.IV 115). Ms. Hernandez was crying 

hysterically. (R.R.IV 115). When asked what the matter was, Ms. 

Hernandez told Ms. Valverde she had been raped. (R.R.IV 115). Ms. 

Valverde then took the action of taking Ms. Hernandez directly to the 

hospital to get her out of the situation. (R.R.IV 115). 

PETITION FOR DISCRETIONARY REVIEW - 8 
Evidence for the Defense: 

The Petitioner testified that on April 14, 2012, he was a member of 

the Baylor football team and they had just finished their spring football 

game. (R.R.IV 139). It was also teammate, Glasco Martin's, birthday. 

(R.R. IV 139). There was going to be a party at Mr. Martin's apartment that 

evening at the Aspen Heights Apartment Complex. (R.R.IV 140). The 

Petitioner drove he and his brother to the party. (R.R.IV 140). At the party, 

the Petitioner saw a girl named "Cat" that he had been seeing. (R.R.IV 141). 

The Petitioner invited "Cat" to the party but didn't know she was going to 

bring all of her friends with her. (R.R.IV 141). 

"Cat" and all of her friends arrived about ten or fifteen minutes after 

the Petitioner arrived. (R.R.IV 142). They all were introduced to the 

Petitioner and began having pictures made with him. (R.R.IV 143). 

Later, the Petitioner danced with "Cat" and also with Ms. Hernandez. 

(R.R.IV 144). "Cat" went off somewhere and the Petitioner was left dancing 

with Ms. Hernandez. (R.R.IV 144). At one point, Ms. Hernandez grabbed 

the Petitioner's hand and went to the bathroom area. (R.R.IV 145). After 

she finished she began looking for her friends whom they could not find. 

(R.R.IV 145). Ms. Hernandez then grabbed the Petitioner's hand and pulled 

PETITION FOR DISCRETIONARY REVIEW - 9 
him outside saying that she wanted to go outside to see if she could find her 

friends. (R.R.IV 146). 

After they got outside, Ms. Hernandez wanted to walk down the 

street, she grabbed his hand and they were walking when she jumped on his 

waist.She put her legs around Petitioner's waist and was kissing the 

Petitioner all over the neck and ear. (R.R.IV 147). The Petitioner continued 

walking for about another 30 yards and stopped by the side of the basketball 

court. (R.R.IV 148). The Petitioner laid her down and they started kissing 

and making out and she began to pull her own clothes off. (R.R.IV 149). 

The Petitioner and Ms. Hernandez began having sex, but saw there was 

another individual nearby and began to pull their clothes back on. (R.R.IV 

149). 

The Petitioner and Ms. Hernandez went to the back of a building and 

again began engaging in sexual contact. (R.R.IV 151). Once they had 

finished behind the building, they then moved to the pool area. (R.R.IV 

153). They again engaged in sex acts by the pool. (R.R.IV 153-54). When 

they had finished, they got dressed and went back to the party. (.RR.IV 

155). 

PETITION FOR DISCRETIONARY REVIEW - 10 
When the Petitioner and Ms. Hernandez first left the party and she 

jumped up on him with her legs around his waist, the Petitioner's cellphone 

began recording video and audio for about a minute. (R.R.IV 158). 

Tarniane Elliott, the Petitioner's brother, testified that on April 14, 

2012, he went with the Petitioner to a party at the Aspen Heights 

Apartments. (R.R.IV 190-91). At the party, Mr. Elliott observed his brother 

and "Cat" with her friends. (R.R.IV 191). 

Mr. Elliott saw his brother dancing with "Cat" and her friends 

including Ms. Hernandez. (R.R.IV 192). He described Ms. Hernandez 

dancing with his brother as "grinding, gyrating". (R.R.IV 192). He later 

saw Ms. Hernandez with his brother's hand leading him out of the door. 

(R.R.IV 193). 

Rebuttal Evidence for the State; 

Jordan Rhodes, Kelsey Ehlares and Tori Diamond were called by the 

State to testify as to attempted and actual sexual encounters which each of 

the individuals had with the Petitioner on different occasions. Each of the 

individuals testified that the encounters they testified to were nonconsensual. 

(R.R.IV 211,249, V21). 

PETITION FOR DISCRETIONARY REVIEW - 11 
Rebuttal Evidence for the Defense; 

Antwan Goodley, testified that he was a football player for Baylor 

University and knew the Petitioner as a teammate. (R.R.V 37). Mr. 

Goodley went to a party at Glasco Martin's in the middle of April, 2012, the 

same day as the spring football game. (R.R.V 37-38). 

Mr. Goodley saw the Petitioner at the party dancing with a girl who 

was "grinding all up on him". (R.R.V 38). Ms. Goodley then saw the 

Petitioner and the girl leave the dance floor after she grabbed his hand and 

walked him out the door. (R.R.V 39). He testified that the girl did not 

appear frightened or scared. (R.R.V 39). 

John Rozyskie, a detective with the Waco Police Department, testified 

that all of the reports made by Jordan Rhodes, Kelsey Ehlares and Tori 

Diamond did not result in the arrest of the Petitioner. (R.R.V 34). Charlotte 

Matthews, a detective with the Waco Police Department, investigated a 

report made by Jordan Rhodes. (R.R.V 49). The result of her investigation 

was that the complaint was unfounded. (RR.V 60). She further reviewed a 

complaint made by Tori Diamond, and saw that the investigation took no 

action on her allegations other than to issue a Class C ticket for Assault. 

(R.R.V 73). 

PETITION FOR DISCRETIONARY REVIEW - 12 
ST A TEMENT OF PROCEDURAL HISTORY 

On April 23, 2015, the Court of Appeals for the Tenth District of 

Texas at Waco affirmed the judgment of conviction. (See Appendix "A"). 

Petitioner filed a Motion for Rehearing on May 8, 2015. On May 28, 2015, 

the Court of Appeals for the Tenth District of Texas at Waco denied 

Petitioner's Motion for Rehearing. (See Appendix "B"). 

GROUNDS FOR REVIEW 

I. 

The Court of Appeals' decision incorrectly upheld the 

conviction of Petitioner by holding that the Petitioner was 

not denied his Sixth Amendment Right to effective 

assistance of counsel at trial. 

II. 

The Court of Appeals' decision incorrectly upheld the 

conviction of Petitioner by holding that the State did not 

present perjured testimony through Jasmin Hernandez 

regarding her state of sobriety during the events alleged in 

the Indictment. 

PETITION FOR DISCRETIONARY REVIEW - 13 
REASONS FOR REVIEW 

I. 

The Court of Appeals' decision incorrectly upheld the 

conviction of Petitioner by holding that the Petitioner was 

not denied his Sixth Amendment Right to effective 

assistance of counsel at trial. 

REASON FOR REVIEW: 

Petitioner would show the Court that discretionary review should be 

granted based upon TEX. R. APP. PROC. 66.3(c) and (f) in that the court 

of appeals has written a decision in conflict with the Court of Criminal 

Appeals and the Supreme Court of the United States; Strickland v. 

Washington. 466 U.S. 668, (1984); Nava v. State. 415 S.W.3d 289, 307 

(Tex. Crim. App. 2013); Hernandez v. State. 988 S.W.2d 770, 770 (Tex. 

Crim. App. 1999), and has so far departed from the accepted and usual 

course of judicial proceedings as to call for an exercise of the Court of 

Criminal Appeals' power of supervision.. 

ARGUMENT: 

On original submission, the panel opinion of the Court of Appeals held 

that Petitioner's Point of Error XI, complaining of the denial of effective 

assistance of counsel to the Petitioner at trial, was not error because the "trial 

court did not abuse its discretion in denying the Appellant's Motion for New 

Trial on this ground for ineffective assistance of counsel." 

PETITION FOR DISCRETIONARY REVIEW - 14 
The Court's decision focused primarily on two issues. The first issue 

was the complete absence of any acknowledgment of a gap in the apartment's 

surveillance video at the time the Petitioner and Jasmin Hernandez would have 

been at the swimming pool. The second issue was the trial counsel's decisions 

to have the Petitioner testify at trial. 

The court summarily dismisses the allegations of the Petitioner that the 

trial counsel failed to cross examine the victim by her written statement and 

Points of Error I-I V and VI - X. Each of the Points of error were handled 

procedurally by the court stating that no proper objection was raised at trial by 

Petitioner's trial counsel. The Court of Appeals fails to consider all of the 

deficiencies of counsel clearly demonstrated by the appellate record. 

The Petitioner attempted to clearly demonstrate failures of counsel's 

performance not in the appellate record through the hearing on the Motion for 

New Trial. The Petitioner further demonstrated counsel's deficiencies through 

the acts performed by counsel during the course of the trial that were contained 

within the record. The Court's holdings in Points of Error I-IV and VI - X 

show the complete failure of an objective standard of reasonableness of the 

performance of counsel. 

To obtain relief for ineffective assistance of counsel, an Appellant 

must establish, by a preponderance of the evidence, that: (1) trial counsel's 

PETITION FOR DISCRETIONARY REVIEW - 15 
performance fell "below an objective standard of reasonableness", and (2) 

there was a reasonable probability that the result of the proceedings would 

have been different but for trial counsel's deficient performance. Strickland 

v. Washington, 466 U.S. 668 (1984); Menefield v. State. 363 S.W.3d 591 

(Tex. Crim. App. 2012). 

The Court's dismissal of the failure of trial counsel to exploit the 

unexplained gap in the surveillance video that would have demonstrated the 

activities of the Petitioner and Jasmin Hernandez at a critical point during the 

events of the evening, was by a summary statement that "the state did not 

notice the gap until it was pointed 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." A gap in the 

surveillance video at the critical time could never be regarded by any 

competent counsel as not beneficial for the defense. Further the State's view 

of the gap is of no consequence. 

The decision to have the Petitioner testify was handled by the Court by 

stating that "the trial judge is the sole judge of the credibility of the witnesses; 

he could have disbelieved Elliott and believed trial counsel's testimony." 

Clearly, a determination of credibility is important, but the Court cannot 

PETITION FOR DISCRETIONARY REVIEW - 16 
discount the consequences the Petitioner faced by being placed on the witness 

stand. The State cross examined the Petitioner regarding three separate, 

unrelated, remote instances of conduct that the Petitioner had with three 

separate women. This conduct was introduced as extraneous offenses under 

Tex. R. Evid. 404(b). (R.R.IV 203-233, 234-263, V 7-32). None of these 

instances would have qualified as properly admissible under Tex. R. Evid. 

404(b) and 403, because Tex. R. Evid. 404(b) states that "[evidence of 

other crimes, wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith." Johnston v. State. 

145 S.W.3d 215 (Tex.Crim.App. 2004). Tex.R.Evid. 403 provides that even 

relevant evidence may be excluded "if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury . . ." " 'Relevant evidence' means evidence having any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence." Tex. R. Evid. 401. Further, the counsel for the 

Petitioner did not object to any of this testimony as evidence by the Court's 

handling of Petitioner's Points of Error VI, VII, VIII on direct appeal. 

The court's job is to review the performance of Petitioner's counsel 

during the course of the trial to determine whether it fell "below an objective 

PETITION FOR DISCRETIONARY REVIEW - 17 
standard of reasonableness" and that there is a "reasonable probability that 

the result of the proceedings would have been different but for trial 

counsel's deficient performance." Strickland v. Washington. 466 U.S. 668 

(1984). The court's attempt to restrict the determination of counsel's 

performance to the presentation of evidence at the Motion for New Trial 

without reviewing the entire performance of defense counsel during the 

course of the trial is too restrictive a view. It is Petitioner's position that an 

overall view of counsel's performance, as demonstrated by the hearing on 

the Motion for New Trial as well as the performance during the course of 

trial as demonstrated by the trial record, shows a deficient level of 

performance below an objective standard of reasonableness to the extent that 

it would be an intellectual injustice and a farce to hold that Petitioner was 

not prejudiced by counsel's performance. 

PETITION FOR DISCRETIONARY REVIEW - 18 
II. 

The Court of Appeals' decision incorrectly upheld the 

conviction of Petitioner by holding that the State did not 

present perjured testimony through Jasmin Hernandez 

regarding her state of sobriety during the events alleged in 

the Indictment. 

REASON FOR REVIEW: 

Petitioner would show the Court that discretionary review should be 

granted based upon TEX. R. APP. PROC. 66.3(b) and (c) in that the Court 

of Appeals has written a decision in conflict with the Court of Criminal 

Appeals; Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009); Ex 

parte Napper. 322 S.W.3d 202 (Tex. Crim. App. 2010); Ex parte 

Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011), and has decided an 

important issue that has not been settled by the Court of Criminal Appeals. 

ARGUMENT: 

On original submission, the panel opinion of the Court of 

Appeals held that Petitioner's Point of Error V, complaining of the 

knowing use of perjured testimony by the State in order to obtain the 

Petitioner's conviction, was not error. As stated by the court, Jasmin 

Hernandez "thought she was not intoxicated at the party and ... (the) 

State thought she was "drunk" when she wrote a statement ... (were) 

PETITION FOR DISCRETIONARY REVIEW - 19 
inconsistencies that do not create a false impression of sobriety to the 

jury." 

As the Court pointed out, Jasmin Hernandez testified that she had 

"maybe 2 cups" of a punch with alcohol and a shot of vodka at the party 

(R.R.IV 42); and that she had a "high tolerance for alcohol" and did not 

think she was intoxicated. (R.R.IV 82-83). She told the nurse 

performing the sexual assault examine that she did not have anything to 

drink within the last twelve hours. (R.R.IV 74). 

In the face of this testimony presented by the State through the 

complaint, Jasmin Hernandez, the prosecutor who presented the 

testimony, stated that her numerous inconsistencies between her trial 

testimony and written statement were because she was "drunk when she 

wrote the statement." (R.R.IV 44). 

The requirement of testimony in order to constitute a violation of 

due process under federal law, is that the State must knowingly use false 

testimony Ex parte Chabot. 300 S.W.3d 768 (Tex. Crim. App. 2009); 

Ex parte Napper. 322 S.W.3d 202 (Tex. Crim. App. 2010). The 

term "perjury" is this context requires proof that the testimony "gives 

the trier a fact a false impression," but it does not require proof of 

PETITION FOR DISCRETIONARY REVIEW -20 
elements of "perjury" as that term is defined in the Penal Code. Ex 

parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011). 

The Court dismisses the inconsistency between the knowledge 

of the prosecutor presenting the testimony and the testimony of 

Jasmin Hernandez by stating that the use of the testimony that she was 

not intoxicated and the State's knowledge that she was "drunk" when 

she wrote the statement does not create a false impression of sobriety 

to the jury. It is impossible to say that the victim's own testimony that 

she was not intoxicated when the State knew that she was intoxicated 

does not create a false impression to the jury. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this 

Petition for Discretionary Review be in all things GRANTED. 

Respectfully submitted, 

/s/WILLIAM A. BRATTON HI 

WILLIAM A. BRATTON III 

2828 Routh, Suite 675-LB10 

Dallas, Texas 75201 

(214)871-1133 

(214) 871-0620 fax 

State Bar No. 02916300 

Email - bill@brattonlaw.com 

ATTORNEY FOR PETITIONER 

(ON APPEAL ONLY) 

PETITION FOR DISCRETIONARY REVIEW - 21 
CERTIFICA TE OF SER VICE 

I hereby certify that a true and correct copy of the above and foregoing 

Petition for Discretionary Review was delivered to the District Attorney of 

McLennan County, Texas, and United States Mail to the State Prosecuting 

Attorney, Austin, Texas, on this the 1ST day of July, 2015. 

Zs/WILLIAM A. BRATTON III 

WILLIAM A. BRATTON III 

ATTORNEY FOR PETITIONER 

(ON APPEAL ONLY) 

PETITION FOR DISCRETIONARY REVIEW - 22 
APPENDIX "A 

PETITION FOR DISCRETIONARY REVIEW -23 
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 bathrootn. When she 

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

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

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

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

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

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

asserted that the sexual conduct was consensual. 

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

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

appeal, the trial court's judgments are affirmed. 

SUFFICIENCY OF INDICTMENT 

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

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

consent of the complainant. Specifically, he contends he was not prpperly 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 jthe indictment 

j 

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

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

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

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

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

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

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

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

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

Article 28.01 of this code. 

Elliott v. State Page 2 
TEX. CODE CRIM. PROC. art. 1.14 (West 2005). 

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

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

whether the indictment is constitutionally sufficient before applying the waiver 

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

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

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

i 

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

j 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). J 

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 

i 

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

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

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

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

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

1

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

indictment. 

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

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

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

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

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

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 h£ 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, 

i 

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

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

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

i 

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 challengejable for cause, 

i 

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. 

i 

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

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

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

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

App. 1986). 

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

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

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

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

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

Trial Testimony 

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

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

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

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

i 

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 6 
twelve hours. She thought she had told the nurse that she had drarik 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 kiiow 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 thiiik the missing 

i 

I 

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 

i 

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 

i 

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 Elliotf s counsel noted that Jasmine had "said a lot of things" in her statement, 

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

Application 

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

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

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

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

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

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

Elliott's fifth issue is overruled. 

PRESERVATION OF COMPLAINTS 

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

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

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

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

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

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

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

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

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

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

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

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

3

 There was no explanation as to what the prosecutor meant by "drunk." 

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

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

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

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

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

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

witnesses' testimony was sufficient to establish a "modus operandi" for extraneous 

offenses pursuant to Rule 404(b) of the Texas Rules of Procedure. Howeiver, 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 

i 

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

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

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

are overruled. 

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

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

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

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

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

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

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

t 

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. 

i 

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 

i 

i 

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

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

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

counsel. 

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

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

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

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

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

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

i 

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 

i 

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 

i 

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 

j 

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

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

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

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

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

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

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

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

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

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

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

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

t 

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

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

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

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

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

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

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

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

171 (Tex. Crim. App. 2005). 

Video Gap 

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

and inform Elliott's trial counsel of the 30 minute "gap" in the surveillance video from 

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

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

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

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

i 

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

t 

j 

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 suggesf 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 fdr 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 

i 

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

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

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

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

Elliott v. State Page 13 
assistance of counsel. 

Decision to Testify 

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

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

i 

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

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

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

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

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

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

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

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

the trial and evidence was going. 

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

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

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

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

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

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

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

Elliott v. State Page 14 
assistance of counsel. 

Failure to Cross Examine 

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

counsel failed to cross examine Jasmine with her prior statement, was nbt 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 i$ inadequately 

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

cannot say that counsel was ineffective on these grounds. 

Elliott's eleventh issue is overruled. 

CONCLUSION 

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

TOM GRAY 

Chief Justice 

Elliott v. State Page 15 
Before Chief Justice Gray, 

Justice Davis, and 

Justice Scoggins 

Affirmed 

Opinion delivered and filed April 23,2015 

Do not publish 

[CR25] 

Elliott v. State 
APPENDIX "B 

PETITION FOR DISCRETIONARY REVIEW - 24 
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 

ORDER 

Tevin Sherard Elliott's motion for rehearing is denied. 

TOM GRAY 

Chief Justice 

Before Chief Justice Gray, 

Justice Davis, and 

Justice Scoggins 

Motion denied 

Order issued and filed May 28, 2015 
CERTIFICATE OF COMPLIANCE 

At the request of the Court, I certify that this submitted computer CD 

complies with the following requests of the Court: 

(1) This filing is labeled with or accompanied by the following information: 

a. Case Style: Tevin Sherard Elliott v. State of Texas 

b. Case Number: ; COA# 10-14-00129-CR 

c. The Type of Brief: Petition for Discretionary Review 

d. The Word Processing Software and Version Used to prepare the filing: 

pdf- Microsoft Office Word 2010 

e. This document contains 4.440 numbers of words. 

2. This CD contains only an electronic copy of the original document which 

was filed in the Tenth Court of Appeals Clerk's office and does not contain 

any document or portion thereof that is not included in the original filing, 

except for hyperlinks to documents that could be included in an appendix 

but were too voluminous or impracticable to be attached to the hard copy. 

3. The electronic filing is free of viruses, spyware, adware, rootkits, or any 

other similar data or files that would be disruptive to the Court's computer 

system. The following software, if any, was used to ensure the filing is in 

compliance: Norton Antivirus 

4.1 understand the submission of a brief in electronic format is not 

considered a filing in this Court. All eBriefs submitted must have been 

previously filed in printed form in compliance with the Texas Rules of 

Appellate Procedure. 

/s/WILLIAM A. BRATTON III 

WILLIAM A. BRATTON III 

2828 Routh St. Ste. 675-LB10 

Dallas, Texas 75201 

Off: 214-871-1133 /Fax: 214-871-0620 

Bar No. 02916300 

PETITION FOR DISCRETIONARY REVIEW - 25